[J-66-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

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

MINOR

APPEAL OF: E.A., MOTHER

:

:

:

:

:

:

:

:

:

:

:

:

No. 11 EAP 2019

Appeal from the order of Superior 

Court entered on February 19, 2019 at 

No. 893 EDA 2018 affirming in part 

and reversing in part the order dated 

March 16, 2018 in the Court of 

Common Pleas of Philadelphia 

County, Family Court Division, at No. 

CP-51-DP-0002607-2016.

ARGUED: September 10, 2019

OPINION

JUSTICE TODD DECIDED: January 22, 2020

In this appeal by allowance, we consider whether the evidence was sufficient to 

establish that E.A. (hereinafter, “Mother”) was a perpetrator of child abuse under the Child 

Protective Services Law (“CPSL”), 23 Pa.C.S. §§ 6301-6386. For the reasons that follow, 

we hold that it was not, and reverse the decision of the Superior Court.

Shortly after 8:30 a.m. on November 17, 2016, Mother presented to the emergency 

department of The Children’s Hospital of Philadelphia (“CHOP”) with her six-year-old 

daughter, N.B.-A. (hereinafter, “Child”). Mother reported that Child had been 

experiencing vaginal discharge for three days. According to the emergency department 

records, Mother advised that she and Child had moved to Philadelphia from the

Dominican Republic approximately one year earlier. In response to questions by CHOP 

staff, Mother further indicated that she had no concerns that Child may have been 
[J-66-2019] - 2

sexually abused, and she stated that Child lived with her and Child’s maternal 

grandmother (hereinafter, “Grandmother”). Mother also stated that no males lived in the 

home. Following a physical examination, which included vaginal swabs, Child was 

discharged at approximately 11:30 a.m., with instructions to take baths and maintain good 

hygiene. 

Lab testing of the vaginal swabs revealed that Child had chlamydia, a sexuallytransmitted infection. Thus, at approximately 2:50 p.m. on November 18, 2016, a nurse 

practitioner at CHOP telephoned Mother and asked that she return to the hospital with

Child for additional testing. Mother and Child returned to CHOP at approximately 4:40 

p.m. that afternoon, at which time Child underwent another physical examination and 

additional testing. According to a Child Protective Services Report (“CPS Report”) which 

CHOP filed with the Department of Human Services (“DHS”) later that day, and which 

was introduced into evidence at a subsequent hearing on March 16, 2018, while at CHOP, 

both Mother and Child denied any sexual abuse, and Mother again denied that any males 

lived in the home. The CPS Report also contained a notation that a nurse at CHOP 

described that “mother’s affect was completely unconcerned, and she was wondering 

where she could order pizza.” CPS Report, 11/18/16, at 7.

Additionally, the CPS Report indicated that, although Mother told CHOP staff that 

no males lived in the home, Child stated that she lived with Mother, Grandmother, and 

three adult male “uncles.” In actuality, the males were Mother’s husband (hereinafter, 

“Stepfather”), and Mother’s two stepsons. Child explained that she slept with Mother, 

while Mother’s stepsons slept in one room, and Stepfather slept alone in another room. 

Child also denied feeling uncomfortable with the males present in the home. When asked 

if other adults came to their home, Child stated, “[s]ome friends come, they sit on a bench 

outside, they leave money and they leave.” Id. at 5. Child further explained, “My mommy 
[J-66-2019] - 3

tells them numbers and they give her money.” Id. When confronted with the discrepancy 

between her and Child’s description of who lived in the home, Mother first stated that the 

men were Grandmother’s uncles, and then stated that the men had moved out of the 

house one month earlier. Mother and Child remained in the hospital overnight, and Child 

was discharged at 4:30 p.m. the following day, November 19, 2016. In light of a safety 

plan that required Child to remain out of her original home, Mother and Child went to stay 

with Mother’s aunt. 

On or about November 21, 2016, Sharina Johnson, an investigator with DHS,

interviewed Mother.1 Johnson advised Mother that, as a result of Child testing positive 

for chlamydia, DHS had opened an investigation. According to Johnson’s testimony at a 

subsequent hearing on March 16, 2018, Mother “appeared very relaxed and not very 

concerned about . . . the results of the STD testing.” N.T. Hearing, 3/16/18, at 15. 

Johnson also recounted that Mother was having her hair done when she arrived, and, 

while Johnson was there, that Mother “sat under the dryer to dry her hair with rollers.” Id.

at 22. During this interview, when Johnson asked Mother who lived with her and Child, 

Mother responded that she, Child, Grandmother, Stepfather, and two of Mother’s 

stepsons lived together. Id. at 16. Mother explained, however, that Child slept with 

Mother in one bedroom; Grandmother slept either on the couch or with Mother and Child; 

Mother’s stepsons shared a separate bedroom; and Stepfather slept in a shed behind the 

kitchen. Id. at 17-18. Mother also stated that none of the men ever slept in the room with 

her and Child. Mother maintained that she was unaware as to how Child could have 

contracted chlamydia, and suggested Child may have contracted it at birth, as a friend of 

 

1 Johnson testified at the March 16, 2018 hearing that, during her “initial phone contact 

texts” with Mother, and during her home interview of Mother, she did not use an interpreter 

when speaking with Mother, but that Mother requested a Spanish-speaking detective 

during her visit to the Special Victim’s Unit on the night Child was placed in foster care. 

N.T. Hearing, 3/16/18, at 26.
[J-66-2019] - 4

her mother had a baby who tested positive for a sexually transmitted disease at birth. Id.

at 18. 

Johnson also spoke with Child, utilizing an interpreter. According to Johnson, 

Child was happy and upbeat, and, when asked “if anyone touched her in a bad way,” she 

replied “no.” Id. at 25. When asked specifically if she was ever touched in a bad way by 

Stepfather or his sons, Child once again replied “no.” Id. at 26. Johnson testified that 

she requested that all members of the household be tested for chlamydia. Id. at 19. 

Mother was tested on November 21, 2016, and one of her stepsons, F.R.M. (hereinafter, 

“Stepbrother”) was tested on November 23, 2016; both tested positive. Stepfather tested 

negative. Upon receiving his test results, Stepbrother reportedly fled the hospital and 

went back to the Dominican Republic. Stepfather eventually went back to the Dominican 

Republic as well.

On November 22, 2016, DHS obtained an Order for Protective Custody for Child 

and Child was placed in foster care. On December 5, 2016, Child was adjudicated 

dependent and it was ordered that she remain in foster care. One month later, 

Stepbrother was identified as the perpetrator of sexual abuse against Child.2 The trial 

court conducted several permanency review hearings between March 2017 and 

December 2017. On March 15, 2018, Child’s guardian ad litem (“GAL”) filed a motion for 

a finding of aggravated circumstances against Mother under 42 Pa.C.S. § 6302(2).

3

 

 

2 Although the record does not contain specific details regarding the circumstances of 

Child’s disclosure of abuse, the parties do not dispute that, at some point after Child was 

placed in foster care, Child disclosed that she had been sexually abused by Stepbrother. 

See DHS Report, printed 3/14/18, at 3 (“The investigation team now has a name for the 

perp on this report. The alleged perp should be [Stepbrother].”); DHS Brief at 10 (“After 

the dependency adjudication, Child disclosed she had been sexually abused.”); N.T. 

Hearing, 3/16/18, at 64 (Mother’s counsel stating to Mother: “And you’re aware that [Child] 

has since disclosed what happened?”).

3 The Juvenile Act, 42 Pa.C.S. §§ 6301-6375, defines “aggravated circumstances” as, 

inter alia, where “[t]he child or another child of the parent has been the victim of physical 
[J-66-2019] - 5

At a hearing on March 16, 2018, DHS first presented the testimony of DHS 

investigator Johnson, detailed above. DHS also presented the testimony of Dr. Maria 

McColgan, who treated Child for chlamydia on one occasion after Child was discharged 

from CHOP.

4

 Dr. McColgan explained that, although chlamydia can be contracted 

through birth, it resolves by the time a child is 2 or 3 years old. As Child was 6 years old

at the time of her diagnosis, Dr. McColgan opined that Child was a victim of sexual abuse. 

Dr. McColgan testified, however, that Child did not have any other physical signs of injury 

or abuse when she examined her. N.T. Hearing, 3/16/18, at 50. Her testimony in this 

regard was consistent with Child’s medical records from CHOP, which also indicated that 

Child did not present with any sign of physical injury or abuse, aside from the vaginal 

discharge initially reported by Mother.

Finally, Mother testified at the hearing. When asked if she could “explain” the 

testimony of the DHS investigator regarding people who visited her home and gave her 

money, Mother stated that she worked at her uncle’s store, which sold lottery tickets and 

other items, and “some people would take things and then they would come and pay me 

later, but I never let them come into the house.” Id. at 64-65. When asked why she 

initially did not tell the staff at CHOP that there were males living in the home, Mother 

replied, “honestly, I didn’t know what was going on and I didn’t want to involved (sic) 

anybody, like dad or -- or her brother in something involved with the -- the child.” Id. at 

62. Mother further stated that Child was always cared for by her, Grandmother, or

Mother’s aunt, and that Child had never told her that she had been sexually abused, which 

she found to be “very strange because she always tells me everything.” Id. at 64. With 

 

abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by 

the parent.” Id. § 6302(2).

4 Dr. McColgan testified that she saw Child at a “brief visit” for follow-up testing because 

Child’s insurance would not allow her to be seen at CHOP. N.T. Hearing, 3/16/18, at 46, 

49.
[J-66-2019] - 6

respect to the suggestion that she seemed “unconcerned” at the hospital when told of 

Child’s diagnosis, Mother explained that “it was just hard for [me] to believe that 

something could have happened to her because my mom was always with her, and I was 

always with her.” Id. at 65. When asked if she currently believed that Child had been 

sexually abused, Mother stated that, while she never observed the abuse, Child had no 

need to lie, and Mother did believe and would always believe what Child said. Id. at 66-

67.

At the conclusion of the hearing, the juvenile court, Judge Lyris F. Younge, stated 

that she “found Ms. Johnson to be credible,” and “found Dr. McColgan to be credible,” but 

“did not find [Mother] to be credible.” Id. at 85. The juvenile court then entered an order 

finding that Mother was a perpetrator of child abuse under 23 Pa.C.S. § 6303(b.1), which 

provides, in relevant part:

Child abuse.--The term “child abuse” shall mean 

intentionally, knowingly or recklessly doing any of the 

following:

* * *

 (4) Causing sexual abuse or exploitation of a child through 

any 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.

23 Pa.C.S. § 6303(b.1). The juvenile court further concluded that aggravated 

circumstances existed pursuant to 42 Pa.C.S. § 6302(2), and that DHS was not required 

to continue to make reasonable efforts at reunification. 

In support of its finding of child abuse under Section 6303(b.1), the juvenile court 

explained:

So, if you’re confronted with a diagnosis that indicates 

that your child has been subjected to a sexually transmitted 

disease, I find it troubling that mom would testify or give 

information that’s not valid or accurate.
[J-66-2019] - 7

So, if there’s three males in the household -- during 

mom’s testimony, mom indicated she did not want to involve 

them. And, at the point that she did that, she put their interests 

over the well-being of her child.

When asked -- when mother was asked did she believe 

that [Stepfather] abused her child -- and the follow-up 

question is, did she believe that [Stepbrother] abused her 

child.

Mother’s response is, “If my child said that,” or, “If my 

daughter said that, then I believe that.” I’m concerned about 

that, because it’s like -- it’s conditional. “Well, if that’s what 

she says, then I’m going to believe it.”

Independently, mom knows that her child tested 

positive for a sexually transmitted disease. And, even if 

[Child] never said it, the fact that mother has that medical 

evidence of some negative traumatic situation that her child 

experienced at the age of six, mom should be able to say, 

without a doubt, “I absolutely believe that she was the victim 

of some type of sexual abuse that resulted in a diagnosis like 

that.

But mom says, “Well, if she says it, I believe it.” And, 

to me, again, that goes to mom’s credibility.

I don’t know if mom is, at this point, accepting full 

responsibility that she, as she self-identified as a primary 

caregiver, was ultimately responsible for the care and wellbeing of the child while in her care. So, the fact that this 

happened while mom was primary caregiver, I believe goes 

to the fact that, indeed -- that there should be a finding of child 

abuse.

In terms of lacking the protective capacities, I think that, 

if mom is not being candid and truthful -- and I would question 

the protective capacities, as well.

I agree with mother’s counsel that mother might have 

done the best she possibly could, but in this case, that 

resulted in harm to a child. Given the outcome of the hearing 

today, I’m absolutely going to make a finding of child abuse.

N.T. Hearing, 3/16/18, at 83-84.
[J-66-2019] - 8

Mother appealed to the Superior Court, which, in a unanimous unpublished 

memorandum opinion, affirmed in part and reversed in part. In the Interest of N.B.-A., 

893 EDA 2018 (Pa. Super. filed Feb. 19, 2019). Specifically, the Superior Court reversed 

the juvenile court’s finding of aggravated circumstances,

5 and its determination that DHS 

was not required to make further efforts at reunifying Mother and Child. The Superior 

Court affirmed, however, the juvenile court’s finding that Mother was a perpetrator of child 

abuse under Sections 6303(b.1) and 6381(d)6 of the CPSL. 

In support of its holding, the Superior Court relied on, inter alia, Dr. McColgan’s 

testimony that Child’s chlamydia did not occur at birth and was the result of sexual abuse; 

the testimony of the DHS investigator who interviewed Mother and described Mother’s 

demeanor as “relaxed and indifferent to the results of the chlamydia testing,” id. at 10;

and the DHS investigator’s testimony that emergency room personnel at CHOP 

characterized Mother as “relaxed” and “seemingly more concerned about a good place 

from which to order pizza than her daughter’s wellbeing.” Id.7 The Superior Court 

explained:

 

5

In this regard, the Superior Court noted, inter alia, that “DHS admits that it presented no 

evidence that Mother was an actual perpetrator of physical abuse or sexual violence, a 

view that the guardian ad litem endorses.” In the Interest of N.B.-A., 893 EDA 2018, at 

16.

6 As discussed below, Section 6381(d) provides:

(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. § 6381(d).

7 Mother objected to the introduction of this testimony on the grounds that it constituted 

hearsay and lacked authentication, but the trial court overruled her objection. On appeal, 

the Superior Court concluded that any error in the admission of the hearsay statement 

was harmless, as it was “cumulative” of the DHS investigator’s report, wherein the 
[J-66-2019] - 9

Mother testified that either she, [Child’s] grandmother, or her 

great-aunt always cared for [Child]. She denied that [Child] 

disclosed any abuse to her. However, her testimony suggests

that, at a subsequent point in the investigation, [Child] leveled 

allegations of abuse against both Stepfather[8] and the 

stepbrother who fled the country. When questioned as to 

whether she believed her daughter’s later allegations, Mother 

asserted, if “she says that that’s what happened, that’s what 

happened.” Nevertheless, despite these supportive 

sentiments, Mother failed to act on her daughter’s allegations 

or attempted [sic] to protect her from abuse. She 

acknowledged that she did not tell the medical providers that 

Stepfather or his sons lived in the home. Her rationale for 

failing to immediately disclose this vital information was 

“[b]ecause, honestly, I didn’t know what was going on and I 

didn’t want to involve . . . anybody, like dad or [Child’s] brother 

in something involved with the -- the child.” Even at this 

juncture, she persists that her failure to disclose the presence 

of Stepfather and his sons in the home was not an effort to 

protect them. Mother testified that she is no longer married to 

Stepfather and that she has no relationship with either him or 

sons. She further denied that Stepfather ever provided care 

for [Child]. 

Id. at 11-12 (hearing citations omitted). Based on the foregoing, the Superior Court held 

that “the juvenile court did not abuse its discretion in concluding that Mother was a 

perpetrator of child abuse regardless of the fact that her stepson had been identified as 

the actual perpetrator of the sexual abuse,” as “Mother was indifferent to the fact that her 

daughter contracted a sexually transmitted disease, and she chose to disregard the 

obvious indicia of abuse.” Id. at 12-13. 

 

investigator had noted the same information, which was offered and admitted into 

evidence without Mother’s objection. See In the Interest of N.B.-A., 893 EDA 2018, at 10 

n.7.

8 The Superior Court cited to pages 66-67 of the hearing transcript to support its statement 

that Child eventually indicated that Stepfather had abused her. The transcript reveals 

that counsel for DHS asked Mother, “do you believe that [Stepfather] sexually abused 

your child?” to which Mother replied, “If she said that, then I say it again, I repeat it: She 

does not have any need to lie.” N.T. Hearing, 3/16/18, at 66. However, we see no other 

reference in the record to any allegation of sexual abuse of Child by Stepfather; thus, we 

confine our discussion and analysis to the allegation made by Child against Stepbrother.
[J-66-2019] - 10

The Superior Court further opined:

In addition to the evidence that established that Mother’s

inattentiveness to her daughter around the adult stepbrother 

knowingly or recklessly created a likelihood of sexual abuse, 

the certified record demonstrates that [Child] suffered child 

abuse of such a nature as would ordinarily not be sustained 

or exist except by reason of the acts or omissions of Mother. 

Hence, through the foregoing evidence of record, DHS 

established a prima facie case pursuant to 23 Pa.C.S. § 6381, 

that Mother was a perpetrator of child abuse, and Mother 

failed to rebut that presumption of abuse. Accordingly, we do 

not disturb the juvenile court’s finding of child abuse as 

perpetrated by Mother.

Id. at 13-14. In this regard, the Superior Court recognized that the juvenile court “did not 

specifically invoke § 6381(d),” but concluded that it could affirm the juvenile court’s 

determination on any basis supported by the record. Id. at 14 n.8. 

Mother filed a petition for allowance of appeal with this Court, which we granted as 

to the following issues, as framed by Mother:

(1) Did the Superior Court err by affirming the trial 

court’s finding that Mother was a perpetrator of child abuse in 

the absence of clear and convincing evidence that she 

intentionally, knowingly, or recklessly caused or created a 

likelihood of sexual abuse through a recent act or failure to 

act?

(2) Did the Superior Court commit an error of law by 

applying 23 Pa.C.S. § 6381(d) to find that DHS established a 

prima facie case that Mother was responsible for the abuse 

perpetrated against [Child] where another individual had been 

identified as the direct perpetrator?

(3) Did the Superior Court commit an abuse of 

discretion by finding that Mother failed to rebut the prima facie

presumption that she was a perpetrator of child abuse 

pursuant to 23 Pa.C.S. § 6381(d)?

In the Interest of N.B.-A., 208 A.3d 59 (Pa. 2019) (order).
[J-66-2019] - 11

Preliminarily, we note that the requisite standard of proof for a finding of child abuse 

pursuant to Section 6303(b.1) of the CPSL is clear and convincing evidence. In re L.Z., 

111 A.3d 1164, 1174 (Pa. 2015) (“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, weighty, 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.” 

G.V. v. Dep't of Pub. Welfare, 91 A.3d 667, 672 (Pa. 2014). As we discuss infra, however, 

in certain situations, the identity of the abuser need only be established through prima 

facie evidence. In re L.Z., 111 A.3d at 1174. As an appellate court, we are required to 

accept the findings of fact and credibility determinations of the trial court, if they are 

supported by the record; however, we are not bound by the lower court’s inferences or 

conclusions of law. Id.

With these standards in mind, we first address Mother’s challenge to the Superior 

Court’s affirmance of the juvenile court’s determination that she was a perpetrator of child 

abuse under Section 6303(b.1) of the CPSL. As noted above, Section 6303(b.1) 

provides, in relevant part:

Child abuse.--The term “child abuse” shall mean 

intentionally, knowingly or recklessly doing any of the 

following:

* * *

 (4) Causing sexual abuse or exploitation of a child through 

any 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.

23 Pa.C.S. § 6303(b.1).

For purposes of the CPSL,
[J-66-2019] - 12

(1) A person acts intentionally with respect to a material 

element of an offense when:

(i) if the element involves the nature of his 

conduct or a result thereof, it is his conscious 

object to engage in conduct of that nature or to 

cause such a result; and

(ii) if the element involves the attendant 

circumstances, he is aware of the existence of 

such circumstances or he believes or hopes that 

they exist.

(2) A person acts knowingly with respect to a material 

element of an offense when:

(i) if the element involves the nature of his 

conduct or the attendant circumstances, he is 

aware that his conduct is of that nature or that 

such circumstances exist; and

(ii) if the element involves a result of his conduct, 

he is aware that it is practically certain that his 

conduct will cause such a result.

(3) A person acts recklessly with respect to a material 

element of an offense when he consciously disregards a 

substantial and unjustifiable risk that the material element 

exists or will result from his conduct. The risk must be of such 

a nature and degree that, considering the nature and intent of 

the actor's conduct and the circumstances known to him, its 

disregard involves a gross deviation from the standard of 

conduct that a reasonable person would observe in the actor's 

situation.

18 Pa.C.S. § 302(b); see 23 Pa.C.S. § 6303 (definitions of “intentionally,” “knowingly,” 

and “recklessly” all specify that the term has the same meaning as set forth in 18 Pa.C.S. 

§ 302).

Mother does not dispute that Child was a victim of sexual abuse. However, she 

contends that DHS failed to offer clear and convincing evidence that she intentionally, 

knowingly, or recklessly caused or created a likelihood of sexual abuse to Child through 
[J-66-2019] - 13

a recent act or failure to act.9 In this regard, she argues that DHS presented no evidence 

“that Mother was aware of any risk posed to [Child’s] safety by [Stepbrother’s] presence 

in the home, or that Mother consciously and unjustifiably disregarded this risk at her 

daughter’s expense.” Appellant’s Brief at 20. Quoting the Superior Court, she notes that 

the only “obvious indicia of abuse,” In the Interest of N.B.-A., 893 EDA 2018, at 13, in the 

record was Child’s diagnosis of chlamydia, which does not support a conclusion that she 

knew or should have known of a danger posed to Child, or that she disregarded any 

warning signs of potential abuse. Mother further asserts that there was no evidence to 

suggest that she should have anticipated a need to be particularly “attentive” to her 

daughter around specific members of her household, Appellant’s Brief at 21, and, 

therefore, there was no basis to conclude that she was reckless in residing with Child in 

the same house as Stepbrother. Finally, she maintains that DHS improperly relied on her 

demeanor and affect as evidence to support its allegations. 

In support of her position, Mother distinguishes the instant case from those in 

which, in her view, courts have “properly found that a parent or caregiver’s intentional, 

knowing, or reckless omissions caused or created a likelihood of child abuse.” Id. at 17 

(citing, inter alia, In re R.P., 957 A.2d 1205 (Pa. Super. 2008) (medical evidence that child 

had more than 100 bruises on his body that were in various stages of healing, as well as 

evidence of skull fracture and healing wrist fracture, notwithstanding mother’s statement 

that she had not observed any bruises while bathing the child that morning, was sufficient 

to establish that mother had notice of child’s abuse); In re L.V., 127 A.3d 831 (Pa. Super. 

 

9 As discussed, the Superior Court did not find that Mother intentionally created a 

likelihood of sexual abuse to Child, but only that her conduct knowingly or recklessly 

created a likelihood of sexual abuse to Child. It also bears repeating that the Superior 

Court observed that “DHS admits that it presented no evidence that Mother was an actual 

perpetrator of physical abuse or sexual violence, a view that the guardian ad litem

endorses.” Interest of N.B.-A., 893 EDA 2018, at 16.
[J-66-2019] - 14

2015) (finding evidence sufficient to support determination that mother was a perpetrator 

of child abuse in light of, inter alia, the fact that child’s rib fractures, even if inflicted by 

child’s father, would have caused child to be in noticeable pain, mother failed to seek 

appropriate medical care for child, and mother continued to associate with father after 

father was arrested and charged with abuse); C.K. v. Dep’t of Public Welfare, 869 A.2d 

48 (Pa. Cmwlth. 2005) (mother’s conduct in repeatedly taking her three young children to 

live, for extended periods of time, with individuals she knew were indicated perpetrators 

of sexual abuse, despite multiple warnings from child welfare agency not to do so, was 

sufficient evidence that she placed children in imminent risk of sexual abuse under the 

prior version of 23 Pa.C.S. § 6303(b)(1)(iii) (2013)). 

Notably, in its brief, DHS does not challenge or respond to Mother’s argument that 

the Superior Court erred in affirming the juvenile court’s determination that Mother was a 

perpetrator of child abuse under 23 Pa.C.S. § 6303. Rather, as discussed infra, DHS 

argues that the presumption of Section 6381(d) of the CPSL supports the Superior Court’s 

affirmance of the juvenile court’s finding that Mother was a perpetrator of child abuse by 

omission.

Child’s GAL, however, argues that there was sufficient evidence to support the 

juvenile court’s finding that Mother was a perpetrator of child abuse under Section 

6303(b.1), specifically asserting that Mother’s false and/or contradictory statements to 

CHOP staff regarding who lived in the house constituted “evidence that she had 

knowledge or was aware of the abuse or risk to Child, but that she consciously 

disregarded it.” Brief of GAL at 34.

Upon careful review, we agree with Mother that the Superior Court erred in 

affirming the juvenile court’s finding that she was a perpetrator of child abuse pursuant to 

Section 6303(b.1). Unlike the cases of In re R.P. and In re L.V., supra, in the instant case, 
[J-66-2019] - 15

there was no evidence that Child exhibited, prior to her initial visit to CHOP, any injury 

that would or should have put Mother on notice that Child had been sexually abused. In 

fact, when Mother first took Child to CHOP on November 17, 2016, Child was discharged 

with instructions to take baths and maintain good hygiene. DHS presented no evidence 

that, prior to being contacted by a nurse practitioner from CHOP on November 18, 2016,

and asked to return to the hospital with Child for additional testing, Mother was aware that 

Child had a sexually transmitted disease, or that Child had been a victim of sexual abuse. 

There was no evidence that Child ever told anyone that she had been sexually abused, 

and, indeed, it is undisputed that, throughout the investigation by DHS, Child consistently 

denied that she had been sexually abused. Child did not disclose that she had been 

sexually abused until after she was in foster care. Thus, there is no factual basis for the 

Superior Court’s determination that “Mother failed to act on her daughter’s allegations,” 

In the Interest of N.B.-A., 893 EDA 2018, at 12, as there were no allegations on which to 

act.

Furthermore, DHS presented no evidence that Mother was or should have been 

aware that Stepbrother posed a risk to Child, or that Mother consciously and unjustifiably 

disregarded such risk. Once again, Child was not diagnosed with chlamydia until 

November 18, 2019, and, during the DHS investigation, not only did Child deny that 

anyone, including Stepbrother, had sexually abused her, Child stated that, if “something 

bad” did happen to her, she “would tell my mommy because I trust her and I would tell 

my teacher.” CPS Report, 11/18/16, at 5. When interviewed at CHOP, Child also denied 

“feeling uncomfortable” with the males in the house. See Child’s CHOP Medical Records 

(DHS Exhibit 3 to March 16, 2018 Hearing), at 102. Unlike in the case of C.K., supra, 

there also was no evidence to suggest that Stepbrother had previously abused other 

children, or that Mother would have any reason to suspect that he had. 
[J-66-2019] - 16

Finally, once Mother was contacted by CHOP and asked to bring Child back to the 

hospital for treatment, Mother did so immediately, and there is no evidence that she was 

not a willing participant in Child’s medical treatment.10 Compare In re L.V. (evidence 

established that Mother not only failed to seek medical treatment for her child’s fractured 

ribs, which would have caused considerable pain and which occurred between 10 and 14 

days prior to child’s hospitalization for subdural brain hemorrhage and abdominal injuries, 

but also failed to seek follow-up treatment at burn clinic after child was brought to hospital 

one month earlier with second degree burns to her hand and foot). Additionally, in 

contrast to the mother in In re L.V., who continued to associate with the child’s father,

Mother divorced Stepfather, and she no longer has any contact with her husband or her 

stepson, the perpetrator of Child’s abuse. Thus, we find that the lower courts erred in 

concluding Mother was a perpetrator of child abuse under 23 Pa.C.S. § 6303(b.1), as 

DHS failed to establish, by clear and convincing evidence, that Mother intentionally, 

knowingly, or recklessly caused or created a likelihood of sexual abuse to Child through 

a recent act or failure to act.

Although Child’s GAL contends that Mother’s “fabrication of false and contradictory 

statements” is evidence that she knew of the abuse, or was aware of the risk of abuse,

Brief of GAL at 34, we cannot agree. The Superior Court addressed a similar issue in In 

the Interest of J.M., 166 A.3d 408 (Pa. Super. 2017). In that case, the child’s maternal 

grandmother took him to the hospital, where he was diagnosed with a fractured wrist. 

According to the doctors, the injury was the type that could have been caused 

accidentally, for example, by the child falling on his outstretched arm. However, the 

 

10 Indeed, in addition to the hospital records from Child’s November 17, 2016 visit to 

CHOP, the original record also contains CHOP’s records from Child’s visit to the 

emergency room one week earlier, on November 10, 2016, at which time Mother reported 

that Child had been complaining of a headache. Child was diagnosed with a virus and 

discharged that same day with instructions to take Motrin.
[J-66-2019] - 17

child’s mother indicated that she did not know what had caused the injury, and she 

volunteered that there was a history of physical violence involving the family of the child’s 

father. In a subsequent dependency proceeding, the child’s mother alternately testified 

that the injury occurred while the child was with his maternal grandmother, and then that 

the injury occurred when the child was with his paternal grandmother. The juvenile court 

opined that, “Mother’s unbelievable testimony further indicates that she’s attempting to 

conceal what happened to the [C]hild while in her care, and she is responsible for the 

injuries to the child while in her care.” Id. at 414. It thus determined, inter alia, that the 

mother was a perpetrator of child abuse pursuant to Sections 6303(b.1) and 6381(d) of 

the CPSL. On appeal, the mother of J.M. argued, inter alia, that DHS failed to prove by 

clear and convincing evidence that the child’s injury was the result of child abuse rather 

than accidental injury. The child advocate, however, argued that the abuse was proven 

through the “conflicting histories” the mother provided regarding the custody of the child 

over the period of time the fracture occurred. Specifically, the child advocate asserted 

that the mother “misled both the hospital and DHS and blamed the paternal relatives for 

the Child’s history.” Id. at 425 (quoting record). 

In reversing the decision of the trial court, the Superior Court first observed:

In light of the inconsistencies in the record, as well as its 

observations of Mother’s demeanor, the family court 

concluded that Mother’s testimony was not believable, that 

Mother “tried as best as she could to confuse,” and Mother 

was “attempting to conceal what happened to the child while 

in her care and she is responsible for the injuries to the child 

while in her care.” 

Id. The court, however, noted that “suspicions are not a substitute for clear and 

convincing evidence. Although the trial court was free to rely on its findings about 

Mother’s testimony, it could not, as a matter of law, find that the Child was abused solely 

on that basis.” Id. at 427. In the instant case, although we are troubled by Mother’s initial 
[J-66-2019] - 18

false statements to CHOP regarding the male residents of her household, those 

statements in and of themselves are insufficient to establish, under a clear and convincing 

evidence standard, that, prior to the time she made those statements, Mother knew or 

should have known of a danger posed to Child by Stepbrother, or that Mother disregarded 

warning signs of potential abuse. To conclude otherwise would be mere conjecture.

Finally, in the case sub judice, there has been great focus by DHS and Child’s GAL 

on Mother’s “relaxed” demeanor while she was with Child at CHOP on November 18, 

2016, and the fact that she asked a nurse about a good place to order a pizza, rather 

than, as counsel for DHS stated in her closing argument, how she could “find the person 

who did this to my child.” N.T. Hearing, 3/16/18, at 73. Although DHS and Child’s GAL 

interpret Mother’s demeanor upon learning that Child tested positive for chlamydia as 

indifference to the fact that Child was sexually abused, such inferences by the parties are

not binding on this Court, and we find there are other reasonable interpretations of 

Mother’s behavior. Notably, in light of the fact that Mother and Child arrived at CHOP at 

4:40 p.m. on the afternoon of November 18, 2016, and were not discharged until nearly 

24 hours later, Mother’s inquiry as to where she could obtain food could just as reasonably 

be viewed as an effort to keep Child happy and comfortable, and her “relaxed” demeanor 

an attempt not to alarm Child. 

More critically, however, and regardless of how one views Mother’s behavior 

and/or demeanor after she was told of Child’s diagnosis of chlamydia, we find that 

behavior and demeanor are insufficient to prove, by clear and convincing evidence, that 

Mother knew or should have known of a risk posed to Child by Stepbrother, or that she 

consciously and unjustifiably disregarded any such risk. Accordingly, for all of the 

foregoing reasons, we hold there was insufficient evidence to support the juvenile court’s 

finding that Mother was a perpetrator of child abuse under 23 Pa.C.S. § 6303(b.1). 
[J-66-2019] - 19

We now turn to Mother’s argument that the Superior Court erred in sua sponte 

applying the presumption in Section 6381(d) of the CPSL to hold that DHS established a 

prima facie case that Mother was a perpetrator of child abuse by omission. Section 6381, 

titled “Evidence in court proceedings,” provides, in pertinent part:

(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. § 6381(d).

Mother first asserts that the juvenile court’s sua sponte application of Section 

6381(d) represents an unprecedented expansion of the presumption that was not 

intended by the legislature, and does not serve the underlying purpose of the statute. 

She further argues that, even if Section 6381(d) could be applied in situations like the 

instant case, where the actual perpetrator of the abuse has been identified, the 

presumption cannot serve as a basis for affirming the trial court’s decision in this case 

because it was not raised, litigated, or relied on by the trial court, and, therefore, has been 

waived. See J.W. v. Dep’t of Pub. Welfare, 9 A.3d 270 (Pa. Cmwlth. 2010). Finally, 

Mother maintains that the evidence does not support the application of the Section 

6381(d) presumption because there was no evidence to suggest that Mother knew or 

should have known of any danger that existed to Child as result of the other individuals 

living in the household.11

 

11 The American Civil Liberties Union of Pennsylvania (ACLU) filed an amicus brief in 

support of Mother, echoing her argument that the Superior Court misapplied Section 

6381(d). First, the ACLU reiterates that the Section 6381(d) presumption was intended 

to allow a parent to be held responsible in cases where there is an absence of direct 

evidence as to the actual perpetrator of the abuse, and that, in the instant case, the 

presumption does not apply because Stepbrother was identified as the actual perpetrator 
[J-66-2019] - 20

In response to Mother’s claim that the Superior Court erred in applying the 

presumption to the instant case, DHS first argues that the Superior Court properly applied 

the Section 6381(d) presumption because In re L.Z., supra, “compels the conclusion that 

in situations exactly like this one − where abuse has occurred and the perpetrator is not 

apparent − the presumption applies to hold the parent responsible.” Brief of DHS at 21.12

As to Mother’s argument that Section 6381(d) was not intended to apply in 

situations where the actual perpetrator of the abuse has been identified, DHS contends: 

(1) although DHS indicated Stepbrother as a perpetrator, there was never a judicial

determination identifying him as such; and (2) Mother fails to cite any case law that holds 

the presumption applies only to cases in which the actual perpetrator has not been 

identified. Id. at 29.

Finally, DHS notes that, because the Section 6381(d) presumption is rebuttable, 

there is no basis for a concern that application of the presumption in situations where the 

identity of the perpetrator of the abuse is known will result in parents being held “strictly 

liable” for abuse of their children committed by others, even outside of the home. Id. at 

31. Child’s GAL similarly contends that Section 6381(d) of the CPSL does not exempt

parents from responsibility where there is another identified perpetrator.13 It further 

 

of the sexual abuse of Child. ACLU further emphasizes that Section 6381(d) is not 

applicable because no evidence was presented to suggest that the abuse occurred as a 

result of Mother’s acts or omissions, or that the harm to Child in this case was foreseeable. 

Finally, the ACLU suggests that, in the absence of any evidence that Mother knew or 

should have known of a risk of sexual abuse to Child, forcing Mother to rebut the Section 

6381(d) presumption converts a rebuttable presumption into an irrebuttable one, which 

violates due process.

12 DHS’s premise in this regard is plainly erroneous, as Stepbrother was identified as the 

perpetrator of the sexual abuse.

13 Although Child’s GAL does not currently dispute that there was an identified perpetrator 

of the sexual abuse of Child in this case, we note that, at the March 16, 2018 hearing, 

Child’s GAL stated, in her closing argument, “this is not a case where we can clearly 

identify any particular person as the perpetrator today.” N.T. Hearing, 3/16/18, at 76. This 

statement clearly was erroneous, as Stepbrother had already been identified as the 
[J-66-2019] - 21

maintains that the presumption is particularly applicable in the instant case in light of 

Mother’s “lying and obfuscation.” Brief of GAL at 49.

Upon review, we conclude that the Superior Court did, in fact, err in applying the

Section 6381(d) presumption to the instant case. We base our decision on a reading of

the plain language of Section 6381(d), which, as noted above, provides that 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 of omissions of the parent or other person responsible 

for the welfare of the child shall constitute prima facie evidence of child abuse by the 

parent or other person responsible for the welfare of the child.

As discussed above, there was no evidence presented in this case that Mother 

perpetrated the abuse. Moreover, there was no evidence presented that Mother knew or 

should have known that Child was being abused, sexually or otherwise, as Dr. McColgan 

testified that Child did not present any physical signs of injury or abuse when she initially 

examined her, and such testimony was consistent with the medical records from CHOP, 

which indicated that Child did not have any signs of physical injury or abuse, aside from 

the vaginal discharge reported by Mother. At that time, Child was discharged with 

instructions to take baths and maintain good hygiene. 

Further, DHS presented no evidence that, prior to being asked by a nurse 

practitioner from CHOP on November 18, 2016 to bring Child to the hospital for additional 

testing, Mother was aware that Child had a sexually transmitted disease, or that Child 

had been a victim of sexual abuse. There was no evidence that Child ever reported that 

she had been sexually abused, and, even throughout the investigation by DHS, Child 

continually denied that she had been sexually abused. Additionally, DHS offered no 

 

individual who sexually abused Child. It is concerning to this Court that, in making their 

arguments to the trial court and to this Court, both DHS and Child’s GAL have stated − 

incorrectly − that the identity of the actual perpetrator of the sexual abuse against Child 

is unknown. See supra note 12.
[J-66-2019] - 22

evidence that Mother knew or should have known that Stepbrother posed a risk to Child,

but ignored that risk. In short, we cannot find that the abuse in this case was of a type 

that would ordinarily not occur except for the acts or omissions of the child’s caretaker.

Although the tragic crime of sexual abuse of a child may occur when a child is 

without proper parental supervision or care, it may also occur despite a parent’s best 

efforts to care for and supervise a child. Sadly, children are vulnerable to abuse when 

they are at day-care or in school; when they are involved in church, athletic, or other 

activities; and even when they are under the supervision of trusted friends or family. Yet, 

parents cannot be with their children every minute of every day, and the vast majority of 

children engage in the aforementioned activities without incident. Applying the Section 

6381(d) presumption to cases such as the one before us, where DHS presented no 

evidence that Mother was or should have been aware that Stepbrother posed a risk to 

Child, or that he or anyone else was abusing Child, would essentially allow a parent to be 

deemed a perpetrator of child abuse by omission in every case where a child is abused, 

placing the burden on the parent to prove that they had no reason to believe that their 

child was at risk. Accordingly, we hold that the Section 6381(d) presumption is not 

applicable where there is no evidence that the parent or other person responsible for the 

welfare of the child knew or should have known of the abuse or the risk of abuse and 

disregarded it. As DHS failed to offer any evidence that Child’s abuse was 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, the 

Superior Court erred in applying the Section 6381(d) presumption. 

In light of our determination, we need not address the parties’ arguments with 

regard to whether the fact that the perpetrator of the abuse was identified precludes 

application of the Section 6381(d) presumption. Further, as we conclude that Section
[J-66-2019] - 23

6381(d) is not applicable in the instant case, we need not reach the issues of whether

DHS waived application of the presumption, and whether the Superior Court abused its

discretion in concluding that Mother failed to rebut the prima facie presumption that she 

was a perpetrator of child abuse pursuant to Section 6381(d) of the CPSL.

For the reasons set forth above, we hold that the Superior Court erred in affirming 

the juvenile court’s determination that Mother was a perpetrator of child abuse, and we 

reverse that portion of Superior Court’s decision.

Chief Justice Saylor and Justices Donohue and Wecht join the opinion.

Justice Dougherty files a concurring opinion in which Justice Baer joins.

Justice Wecht files a concurring opinion in which Justices Baer and Dougherty join.

Justice Mundy files a concurring and dissenting opinion.