In The Interest of: I.R., Appeal of C.E. (memorandum)

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J-S20044-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: I.R. IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: C.E. No. 1990 WDA 2013 Appeal from the Order November 8, 2013 in the Court of Common Pleas of Beaver County Civil Division, at No(s): 164 of 2013 BEFORE: GANTMAN, P.J., DONOHUE, and FITZGERALD*, JJ. MEMORANDUM BY FITZGERALD, J.: FILED JULY 11, 2014 ctober 17, 2013, and November 8, 2013, respectively, in the Beaver County Court of Common Pleas, Juvenile Court Division, finding the existence of aggravated circumstances, pursuant to 42 Pa.C.S. § 6302, as to Father with placement goal from reunification to adoption, pursuant to 42 Pa.C.S. § 6351.1 We affirm. The relevant facts and procedural history of this case are as follows. On September 20, 2013, Sergeant Dawn Shane of the Rochester Borough received a communication from the Beaver County 9-1-1 Center directing * Former Justice specially assigned to Superior Court. 1 Pursuant to its October 17, 2013 order, the trial court also issued a finding ty to this appeal. J-S20044-14 w Jersey. Trial Ct. Op., 12/24/13, at 4. Sergeant Shane telephoned Maternal Grandmother, who informed the Sergeant that on September 19, 2013, Mother, who resides in Rochester, Beaver County, Pennsylvania, had contacted Maternal Grandmother, asking for C insurance. Id. Mother explained to Maternal Grandmother that Child was in need of medical attention because he had fallen out of his stroller, injuring his arm. Id. at 4-5. Maternal Grandmother instructed Mother to take Child to the hospital, warning that if Mother failed to do so by 12:00 p.m. on September 20, 2013, she would contact the Rochester Police. Id. at 5. When Maternal Grandmother did not hear from Mother by 12:00 p.m. on September 20, 2013, she called the Rochester Police. N. T., 10/15/13, at 71. Sergeant Shane, accompanied by Officer Cesar Chavez, proceeded to mother, K.H., also reside. Id. at 72, 74- residence, the officers were received by K.H. Trial Ct. Op. at 5. ed. K.H. Id. K.H. also indicated to the officers that Mother was neglectful of Child when he was in her care. Id. -2- J-S20044-14 Id. Father was at home and advised the officers that Child was also present. Id. Sergeant Shane requested that Father retrieve Child so that the officers could observe him. Id. When Father brought Child to the officers, Sergeant Shane observed that Child had a swollen forehead, a bruised cheek, an apparent broken arm, and a severely infected and swollen lip, and that Child appeared to be in shock. Id. Based on these observations, Sergeant Shane immediately determined that Child was in need of medical attention and called for an ambulance. Id. When asked by Sergeant Shane why he had Id. at 5-6. The Rochester Police and medical personnel took custody of Child and tra for treatment. Id. at 6. Officer Chavez transported Father to the police department for questioning while Sergeant Shane contacted Detective Kim Clements of the Beaver County Distr Id. A BCCYS caseworker, Nicole DiCicco, met Sergeant Shane and Detective Clements at Heritage Valley, where she observed Child to be in a compromised medical condition and took photographs of Child in the emergency room. Id. at 1-2. Upon examination of Child, medical personnel at Heritage Valley determined -3- J-S20044-14 Id. at 6. After Child was lifeHospital, Sergeant Shane returned to the police department to participate in police interviews of Father, Mother, N.H., and K.H. Id. M and that Child had injured his arm three days prior to September 20, 2013, when he fell out of his stroller, but that she did not seek medical attention Id. Mother denied that Child had any other injuries. Id. Mother also related that on a prior occasion, Child exhibited eye problems and was in a nearly comatose state for a number of days after returning tention for Child on this prior occasion either. Id. Both Mother and Father communicated that 19, 2013. Id. at 7. Further, Father provided the Rochester Police with a Facebook message that he apparently sent to Mother at 7:50 a.m. on September 20, 2013, indicating that Child was in need of medical attention because his arm appeared to be broken. Id. However, despite his attention for Child. Id. As a result of their investigation, the Rochester Police filed criminal charges of aggravated assault, simple assault, endangering the welfare of a child, and recklessly endangering another person against Mother and N.H., -4- J-S20044-14 and charges of endangering the welfare of a child and recklessly endangering another person against Father and K.H. Id. Both Mother and Father have remained incarcerated since the filing of charges. Id. On September 23, 2013, BCCYS made application for, and the trial court granted, an order for emergency protective custody. Id. at 2. The order transferred legal and physical custody of Child to BCCYS and provided that upon his release from the hospital, Child would be placed in foster care. Id. BCCYS also filed a dependency petition on September 23, 2013. Id. a shelter care hearing, at the conclusion of which the Master issued its finding that to allow Child to remain in the home of his parents would be Id. The Master recommended that legal and physical custody of Child remain with BCCYS, and that Child be placed in foster care upon discharge from the hospital. Id. The Master further recommended that there be no contact between Child and his parents or N.H., and that the location of Child upon release from the hospital not be disclosed to his parents. Id. On September 27, 2013, the trial court issued an order approving the On October circumstances. dependency 1, Id. 2013, BCCYS filed a motion for aggravated Id. petition and motion for aggravated circumstances was scheduled for October 3, 2013. Id. at 2-3. At the October 3, 2013 hearing, -5- J-S20044-14 trial court, and the hearing was continued to October 15, 2013. Id. at 3. On October 15, 2013, the trial court held a dependency hearing at which BCCYS presented testimony from Sergeant Shane, Ms. DiCicco, and offered any testimony or evidence at the hearing. Hospital on September 20, 2013. Dr. Wolford gave Her primary responsibility was the evaluation and diagnosis of child abuse and child maltreatment. 10/15/13, at 7. She testified, inter alia, as follows: [Counsel for CYS]: Q: What was your assessment? -monththe victim of physical abuse. This is simply a battered child. He has multiple injuries, and I can list those all for you. He had multiple bruises all over his body, as well as excoriations of unattended medical needs on his face and on his hands. So, it is my medical assessment with a very reasonable degree of medical certainty that [Child] had been the victim of physical child abuse on multiple, repeated occasions. Q: Would there have been pain suffered with this abuse? A: Severe pain. I actually think it would have been excruciating pain. Most particularly, he has a left arm fracture that was unattended to. It was red and swollen. There is thought that it could have been broken for days and harboring an infection. He continues now still to get treatment for it. I actually saw him today in my clinic. There is concern that the growth plate will never heal completely. So he may have gro sitting with that fracture unattended. So, not only was it -6- N.T., J-S20044-14 painful when it occurred, but he sat there with broken arms and legs without getting medical attention. Q: And is it your findings that the particular injuries were suffered over a period of time and not all on one occasion? A: It is my opinion . . . he had a fracture on his left ulna, which is one of the two bones in your forearm, with complete separation of the head of that bone. He also had a fracture in the left femur, which is your thigh bone, which is a huge bucket handle fracture consistent, almost pathognomonic for child abuse. His right tibia, he had a ibia down towards the foot, he had a fracture. but I will say that the left ulna fracture he got was generally fresh, again, harboring an infection. That the right tibia, and the, particularly the left tibia had some signs of healing to them. So they were a bit older. Your body starts to lay down new bone after about three days. Additionally, . . . [h]e had multiple bruises of different colors on his face, extremities, and abdomen. Dating bruises is a bit of an imperfect science. However, we do know that most bruises are more reddish in their first twenty-four hours, and so he had multiple fading, yellow bruises over the forehead and cheeks. He had a large blue bruise on his right cheek, three blue bruises on his left cheek, so more bluish in color. . . . left hand and wrist, it was red and swollen, and then on his finger he was very excoriated, but he actually was missing his fingernail, and then on his face he had this horrendous rash that had cracking. His mouth was actually bloody at its creases because of the excoriation of this unattended medical issue on his mouth and chin were so difficult. Id. at 9-12. -7- J-S20044-14 Dr. Wolford identified several photographs taken of Child and Id. at 12-22. She didn Id. at 43. Dr. Wolford was questioned by the court. The court asked how long Child was in the hospital and Dr. Wolford stated he was admitted on September 20th and discharged on October 3rd. Id. at 55. She testified: [The Court]: Could you describe for us the treatment that the hospital rendered to [Child]? A: [Child] was pretty sick and in tons of pain. So, a lot of the initial pain management was the treatment with trying to get him more comfortable. He was casted. Both legs had been put into a cast, and he had been sedated for that. because it was too swollen. So, on his third or fourth day, they had to do an ultrasound, and then they realized it was full of fluid in that wrist, and so they had to take him to the O.R. to do what we call an incision and drainage. infection. So, that was drained out, and then he had to have a long-term catheter placed, which we call a PICC line, a peripherally inserted central catheter, and he wears that now to today. It goes in in his elbow on his right arm .... * * * Q: While in the hospital, did he undergo any surgery? A: He did go to the operating room for incision and drainage . . . and then he also had to get sedated and go to the operating room just to have his legs casted, and then they do anticipate a potential future surgery for his arm. -8- J-S20044-14 * * * Q: Could you give us a prognosis for [Child]? A: . . . The good news is that his brain looks normal. . . . E breaking down the ulna, you have got a lot of ligaments and things that go down through there for full function of his hands, but he does have his hands. * * * He will probably take the next year to catch up developmentally. I find his speech right now to be poor. motor and developmental skills with his hands because both hands, one hand is bandaged, and the other one is casted. Eventually he will catch up. It might take him now. * * * [Guardian Ad Litem]: . . . In your experience, would it have been clear as a caretaker that this child needed medical attention? A: 100 percent, without a doubt. Q: Okay. A: It is gross neglect that this child was not taken to medical care before this. Id. at 56-59, 65-68. -9- J-S20044-14 At the conclusion of the dependency hearing, the trial court circumstances as to both parents. The court directed that Child remain in On October 23, 2013, BCCYS filed a petition for a permanency review continu aggravated circumstances as to both parents. On November 7, 2013, the trial court conducted a permanency review hearing, at which BCCYS presented testimony from BCCYS caseworker, Toni Whiteleather. testified as follows: [Counsel for BCCYS]: What has transpired since the last hearing? A: Since the last hearing, which was October 15th, the Adjudication Disposition Hearing, the Agency was granted aggravated circumstances, that the Agency no longer has to provide services to the family. [Child] at this time is in foster care, and the Agency has completed an Interstate[2] to possibly place [Child] with his maternal grandmother . . . . Q: And what is your recommendation? A: The recommendation at this time is that the goal be changed to adoption. Q: And that would be with the grandmother, is that correct. 2 Maternal grandmother resides in New Jersey. N.T., 11/7/13, at 8. - 10 - She J-S20044-14 Q: Have you had contact with the grandmother? A: Yes, I have. * * * [Guardian Ad Litem]: In regards to these parents, there are accompanying criminal charges that were filed in regards to both parents, is that correct? Q: And are you familiar with those charges? A: Yes. Q: And do you know what charges those are? A: [Mother] has been charged with aggravated assault, simple assault, endangering the welfare of a child, and reckless endangerment. Q: [A]nd was there a preliminary hearing for her? A: Yes, there was. Q: And were those charges held over? A: Yes, they were. Q: And what about [Father]? A: I believe he was charged with reckless endangerment and endangering the welfare of a child. Q: And was there a preliminary hearing for [Father]? A: Yes. Q: And were those charges held over? A: Yes. - 11 - J-S20044-14 obviously no services being provided to either of these parents, correct? be a goal change here today? A: No. Q: Have you talked to the grandmother in New Jersey about her being the placement option for [Child]? A: Yes. Q: And is she in agreement with that? A: Yes. Q: And what, can you give the court a, I guess a general overview of what those discussions were about her possibly taking Child? A: [Grandmother] is in agreement that she would be willing to adopt [Child]. . . . I also questioned about future involvement with [Mother] and [Child], that if she should adopt [Child], that in no way, shape, or form would she be able to return [Child] to her care. Q: And what was her response to that directive of you? A: She was already well aware that she would not be able to return [Child] to [Mother]. N.T., 11/7/13, at 5-8. Neither parent offered any testimony or evidence at the hearing. At have been filed against both parents, and the obvious severe injuries - 12 - J-S20044-14 Id. at 25. On December 4, 2013, Father simultaneously filed a timely 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). Father raises the following issues for our review: convincing evidence of aggravat[ed] circumstances was established as to Father pursuant to 42 Pa.C.S. § 6351(e)(2)[?] II. convincing evidence was established to change the placement goal from reunification to adoption pursuant to [42 Pa.C.S. § 6351(f)][?] First, Father argues that BCCYS failed to establish by clear and convincing evidence the existence of aggravated circumstances with respect to Father and, thus, the trial court abused its discretion in so finding. Father does not dispute the testimony and evidence adduced regarding the extent and sever Id. at 11. disagree. Our Supreme Court stated the 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 - 13 - We J-S20044-14 s inferences or conclusions of law. Accordingly, we review for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Dependency matters are governed by the Juvenile Act, 42 Pa.C.S. §§ 6301- Section 6302 of the Act defines a dependent child as a child who: 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, or other places the health, safety or welfare of the child at risk[.] 42 Pa.C.S. § 6302. In In re G.T., 845 A.2d 870 (Pa. Super. 2004), we stated: 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 quotation marks and citations omitted) proof in a dependency proceeding is on the petitioner to demonstrate by clear and convincing evidence that a child meets that statutory definition of Id. Section 6341 of the Act, regarding the disposition of a dependent child, provides in pertinent part: - 14 - J-S20044-14 (a) General rule. After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child. . . . * * * (c) Finding of Dependency. If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case. (c.1) Aggravated circumstances. If the county agency 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. § 6341(a), (c) & (c.1). Here, the trial court found that aggravated circumstances existed in relation to Father, as defined under Section 6302(2) of the Act, which provides: Any of 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. - 15 - J-S20044-14 which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily Id. omission in the care of a child which results in a life-threatening condition or Id. The trial court opined: body. Additionally, in her interview with the police, Mother with Father for one week in early September [2013], Child displayed difficulty with his eyes and appeared comatose. Father permitted Child to sleep in a stroller the night of September 19-20, 2013, in a deteriorated condition. er[,] Child should be taken to the hospital, supports the position of BCCYS that Father, in fact, was aware that Child had suffered an injury to his arm. . . . Even more telling is to Sergeant Shane in response to the Sergeant Shane testified that she knew Child was medically compromised immediately upon observing him. Father took no action to seek medical attention for Child, and, instead, suggested to Mother that she take Child to the hospital. * * * The testimony of Sergeant Shane, Caseworker DiCicco and Dr. Wolford, together with an examination of the convincingly establish that Child had suffered serious bodily injury and was the subject of aggravated physical - 16 - J-S20044-14 neglect on the p to seek medical attention for Child at a time that he was sufficient to establish aggravat[ed] circumstances on the part of Father. Trial Ct. Op., at 13-14, 16-17. We agree. clear and convincing evidence in the record, and we will not disturb the trial See In re R.J.T., 9 A.3d at 1190. There was ample evidence from which the trial court could conclude that Child was the victim of physical abuse resulting in serious bodily injury and/or aggravated physical neglect, pursuant to Section 6302 of the Act, while in o abuse of discretion on the part of the trial court in finding the existence of aggravated circumstances as to Father. See id. placement goal from reunification to adoption. Father argues that because -three days after aggravat[ed] circumstances -13. We disagree. - 17 - J-S20044-14 l from reunification to adoption is as follows: When reviewing an order regarding the change of a placement goal of a dependent child pursuant to the Juvenile Act, 42 Pa. C.S.A. § 6301, et seq., our standard of review is abuse of discretion. When reviewing such a decision, we are bound by the facts as found by the trial court unless they are not supported in the record. In re B.S., 861 A.2d 974, 976 (Pa. Super. 2004) (citation omitted). In t interests of the child and not the interests of the parent must guide the trial court, and the burden is on the child welfare agency involved to prove that a change in In re R.I.S., 36 A.3d 567, 573 (Pa. 2011) (citations omitted). Section 6351(f) of the Act sets forth the criteria the trial court considers in a permanency review hearing. (f) Matters to be determined at permanency hearing. 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. - 18 - J-S20044-14 (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. * * * (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 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 amily has not been provided with necessary services to achieve the safe return to the frames set forth in the permanency plan. 42 Pa.C.S. § 6351(f). ment goal, the trial court reasoned: In accordance with [section 6351(f) of the Act], the [trial court] . . . determined that placement of Child continued to be necessary and appropriate; the - 19 - J-S20044-14 permanency plan developed for Child was not appropriate or feasible due to the [trial court] previously finding aggravat[ed] circumstances and ordering that no further services be provided, thus making reunification unfeasible; that neither parent had made any progress to alleviate the circumstances which necessitated the original placement due to the parents remaining incarcerated on charges relating to the physical abuse of Child, and not being offered services due to the granting of aggravat[ed] circumstances; that the current placement goal was not appropriate or feasible; that reasonable efforts to finalize the permanency plan were developed and Child was safe in the current placement. In addition, the court determined that due to the finding of aggravat[ed] circumstances, reasonable efforts to prevent or eliminate the need to continue to be made. The extent of the physical abuse inflicted on Child, ds, willing or capable of being a resource to provide proper permanency and well-being would not be served in the care and custody of Father. Therefore, reunification is not in the best interest of [] Child, and the change of goal to adoption was justified. Trial Ct. Op., at 21-22. We agree. and that it reasonably concluded that placement for adoption, not reunification with Father, would best serve the best interests of Child. See In re R.I.S., 36 A.3d at 573. Thus, we discern no abuse of discretion in the reunification to adoption. In re B.S., 861 A.2d at 976. - 20 - J-S20044-14 from reunification to adoption. Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/11/2014 - 21 -

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