In the Int. of: M.M., Appeal of: E.M.

J-S23016-23

2023 PA Super 159

IN THE INTEREST OF: M.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: E.M. :

:

:

:

: No. 439 EDA 2023

Appeal from the Order Entered January 18, 2023,

in the Court of Common Pleas of Philadelphia County,

Juvenile Division at No(s): CP-51-DP-0002129-2015.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

OPINION BY KUNSELMAN, J.: FILED AUGUST 30, 2023

In this matter, we decide whether a juvenile court’s dependency

adjudication may serve as a basis to amend a non-party’s report of child abuse

from “indicated” to “founded,” pursuant to the Child Protective Services Law

(CPSL). See 23 Pa.C.S.A. § 6303(a) (definition of “founded report”).

Pursuant to the CPSL, certain judicial adjudications – including a dependency

adjudication under the Juvenile Act1 – may serve as the basis for designating

a report as “founded,” so long as the judge determined there was clear and

convincing evidence of child abuse. See id. When a report is “founded,” the

name of the perpetrator is placed on a statewide registry, which in turn

triggers a litany of consequences. In this case, the Juvenile Division of the

Philadelphia County Court of Common Pleas (the juvenile court) adjudicated

dependent M.M., the 12-year-old son of J.D.-S. The dependency proceedings

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1 See 42 Pa.C.S.A. § 6341.

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began after the death of M.M.’s sibling. Allegations of child abuse were made

against J.D.-S. (Mother) and E.M. (Appellant), a family friend. In its

adjudicatory order, the court found child abuse and determined that the

reports of Mother and Appellant should be amended from “indicated” to

“founded.” Appellant appealed, maintaining that the juvenile court exceeded

its authority under the CPSL, because she was not a party to the underlying

dependency action. After careful review, we agree, and therefore we vacate

that provision of the adjudicatory order pertaining to Appellant.

The record discloses the following factual history. Philadelphia

Department of Human Services (DHS) had been intermittently involved with

Mother and her Children for over a decade.2 In December 2021, Appellant

moved into Mother’s home to help Mother care for the Children. At the time,

the Children (son M.M., daughter C.S., and son Ch.S.) were 11, 12, and 13

years old, respectively. On February 19, 2022, C.S. (Decedent) died; she had

just turned 13. The circumstances surrounding her death are tragic.

The [child protective services] report alleged that the

[Decedent] was taken to Saint Christopher’s Hospital for

Children by emergency medical services after she was found

nonresponsive that morning. CPR was administered without

success, and the [Decedent] was pronounced dead at the

hospital. The report alleged that Mother and a family friend,

[Appellant], resided in the home with the [Decedent] and

the [two other] Children. The CPS report further alleged

that Mother and [Appellant] felt the [Decedent’s] anorexia

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2 W.M. (Father) appeared at the adjudicatory hearing.However, he wished to

be excused from the proceedings, and without objection, the juvenile court

granted his request. Father was not otherwise involved in this matter.

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was [reoccurring] because she had not been eating as much

as normal. [Appellant] stated that when she checked on the

[Decedent] around 7:00 AM, she was slow to respond,

disoriented, and her heartbeat was racing. [Appellant]

checked on the [Decedent] two hours later and she was

nonresponsive. The report further alleged that the

[Decedent] was taken to the hospital wearing an adult

diaper. This report was indicated.

That same day, DHS received a supplemental [child

protective services] report alleging that once the [Decedent]

arrived at the hospital, staff performed CPR for 25 minutes,

which proved to be unsuccessful. It was also reported to

the Philadelphia Police Department that the [Decedent] had

lividity[3] in her right cheek, right earlobe, back, and

buttocks, and that her pupils were dialed six inches. The

report further alleged that Mother and [Appellant] resided

in the home […]. Based on the lividity of the [Decedent’s]

body, the Philadelphia Police Department [] believed that

[Appellant’s] account that the [Decedent] was alive at 7:00

AM was incorrect. This raised concerns that there was a

delay in medical care that could have contributed to her

death.

On February 22, 2022, DHS received [another]

supplemental [child protective services] report […]. This

report alleged that the [Decedent] slept in the same bed as

[Appellant]. The report further alleged that the [Decedent]

had been refusing food for days and that she was wearing a

diaper because she was too weak to walk to the bathroom.

The [] report alleged that at 7:00 AM, the [Decedent]

reportedly woke up and [Appellant] noticed that her heart

was racing. The report alleged that [Appellant] left the

room, went back to sleep, and when she returned two hours

later, the [Decedent] was cold to the touch and

nonresponsive.

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3 “Lividity” refers to “reddish to bluish-purple discoloration of the skin due to

the settling and pooling of blood following death.” Lividity, Merriam-Webster,

https://www.merriam-webster.com/dictionary/lividity.

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Trial Court Opinion, 3/8/23 (T.C.O.), at 2-3 (style adjusted) (footnote added)

(citations to the record omitted).

In March 2022, DHS obtained an order of protective custody for the

Decedent’s surviving brothers, M.M. and Ch.S. Two days after the order of

protective custody, Ch.S. went “AWOL.”4 Meanwhile, DHS filed a dependency

petition against Mother, alleging that M.M. was without proper parental care

or control. In April 2022, DHS determined there was substantial evidence of

abuse, and thus DHS “indicated” the report of child abuse and named Mother

and Appellant as perpetrators for their failure to provide the Decedent with

necessary medical care.

The juvenile court conducted dependency proceedings over the course

of four dates: May 4, 2022; July 19, 2022; October 20, 2022; and January

18, 2023. Evidently, the proceedings were continued on each on the first

three dates, culminating with a substantive adjudicatory hearing on January

18, 2023. Only the transcript for the final January date was made a part of

the record. As far as we can discern from record, the appellate briefs and the

T.C.O., the following procedural history transpired:

On the first hearing date, May 4, 2022, Appellant appeared before the

dependency court in answer to a witness subpoena.5 At the conclusion of that

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4 DHS had yet to locate Ch.S. as of January 18, 2023, the date of the order

from which Appellant appealed.

5 We note that the only subpoena in the record is for Appellant’s presence on

January 18, 2023 – the last hearing date.

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first date, the dependency court appointed counsel to represent Appellant in

an “unassigned role.” Also on this date, DHS notified Appellant, pursuant to

CPSL, that the report of child abuse against her was deemed “indicated.” The

court evidently heard testimony from DHS about the death of Decedent, and

the Agency’s subsequent investigation. See DHS’s Brief at 3. Later that

month, on May 26, 2022, Mother was criminally charged with third-degree

murder and endangering the welfare of a child.

The dependency proceedings resumed on July 19, 2022. On this second

date, Mother’s counsel requested a continuance, which the court granted.

Appellant and her lawyer were present for the second day. Appellant’s counsel

objected to the dependency court’s jurisdiction over Appellant, maintaining

that Appellant was a non-party and that she had not been served with any

sort of petition. Appellant’s counsel also informed the court that she could not

access the sealed juvenile docket, because Appellant was not a party to the

dependency proceedings. DHS countered that it had informed Appellant’s

counsel, via email, of its witness list and exhibits 30 days prior to the hearing.

DHS also said that it sent a letter to Appellant informing her that the child

abuse report against her was “indicated.” The court agreed with DHS, noting

that Appellant was aware of the evidence and testimony against her, and,

because Appellant’s counsel was present, Appellant must have received

notice. Id. at 5.

The proceedings resumed on October 20, 2022. On this third date,

Appellant’s counsel renewed her jurisdiction objection and further argued that

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while DHS emailed a redacted version of the dependency petition, service was

still deficient. The court determined that if notice had been defective

originally, it was cured by Appellant’s signature of her subpoena in July and

her receipt of the emailed, redacted dependency petition.6

The proceedings culminated on the fourth and final date, January 18,

2023, which we understand to be the substantive hearing. Counsel for

Appellant re-raised the jurisdiction and notice objections. Appellant’s counsel

reasoned that even if Mother’s dependency petition somehow sufficed as

notice, notice was still defective because the narrative contained in the petition

did not allege any specific abuse or neglect on the part of Appellant – only on

the part of Mother. See N.T., 1/18/23, at 9-11. Appellant maintained that

she had never received a formal written petition, summons, or other

documentation explaining that DHS sought to establish a “finding” of child

abuse against her through this juvenile court hearing. See id. at 11. The

court overruled Appellant’s objections and proceeded with witness testimony.

The DHS investigative social worker testified about the allegations in

the child protective services reports. In addition to the allegations mentioned

above, the social worker testified that Appellant told her of the following: that

Appellant moved into the home to help Mother care for the Children; that the

Children considered Appellant to be a maternal aunt; that the Decedent was

____________________________________________

6 The record contains a copy of the dependency petition, but the copy does

not appear to be redacted. It is unclear what version of the petition Appellant

received.

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being cyber-bullied prior to her death, which may have contributed to her

suspected anorexia; that the Decedent wore adult diapers because she was

too weak to walk to the bathroom; and that the Decedent did not receive any

medical treatment for these concerns. See T.C.O. at 4-5 (citations to the

record omitted).

The social worker also testified to the deplorable living conditions: there

were animal feces and urine throughout the house; there was a foul odor in

each room; there were no sheets on the Children’s beds; and the mattresses

were stained with urine. Moreover, Children were not up to date on routine

medical or dental care. The Children did not have seasonally appropriate

clothing; the Children were unkempt; and they were not enrolled in school.

Id. at 6 (citations to the record omitted). The DHS investigative supervisor

also testified to these facts. The supervisor further testified that Appellant

told her: the Decedent stopped eating food four months prior to her death and

was only drinking water; that the Decedent slept in the same bed as Appellant;

and that Appellant gave the Decedent a shower the night before her death.

Id. at 8-9 (citations to the record omitted).

The juvenile court also heard testimony from Dr. Julia de la Garza-

Jordan, an employee of the Philadelphia Medical Examiner’s Office, who

conducted the Decedent’s autopsy:

Dr. de la Garza-Jordan testified that when the [Decedent’s]

body arrived at the [Medical Examiner’s] Office, it appeared

as if it were recently bathed, yet her hair contained copious

amounts of lice, which she described as unusual. She also

stated that it was striking that the 13-year-old Decedent

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was wearing an adult diaper upon arrival. Dr. de la Garza-

Jordan testified that the [Decedent] was underweight and

had pressure ulcers on her bilateral heels and in the

lumbosacral region. The pressure ulcers were significant

because it meant that the [Decedent] was in stasis,

positioned on her back with her heels on a surface, which

caused her blood to stop circulating properly.

Dr. de la Garza-Jordan also testified that there were several

inconsistences between the findings she observed from

examining the [Decedent’s] body and the statements made

in the DHS investigator’s report. […].

After conducting the autopsy, Dr. de la Garza-Jordan was

able to determine, to a reasonable degree of medical

certainty, that the [Decedent’s] cause of death was

inanition. She defined inanition as starvation to the point of

organ failure and death. Dr. de la Garza-Jordan came to

this conclusion because the [Decedent] had a low body mass

index, had a significant weight loss of over 60 pounds [7],

had lice when she arrived at the [Medical Examiner’s] Office,

and underwent several unsuccessful rounds of CPR at the

hospital. She also came [to] this conclusion because the

[Decedent] was underweight and wearing an adult diaper,

yet received no medical care. Dr. de la Garza-Jordan also

determined, to a reasonable degree of medical certainty,

that the [Decedent’s] manner of death was a homicide.

T.C.O. at 7-8 (citations to the record omitted) (footnote added).

At the close of testimony, the juvenile court entered an order

adjudicating M.M. dependent. The court did not rule on the dependency

petition regarding the brother, Ch.S., which it left “open,” due to DHS’s

inability to locate him. In its adjudicatory order, the court stated:

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7 The court heard testimony that the decedent weighed between 160-180

pounds in October 2021, and 107 pounds at the time of her death in mid-

February 2022. See T.C.O. at 10 (citations to the record omitted).

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After consideration of the evidence, it is ORDERED that the

Child [(M.M.)] is found, by clear and convincing evidence,

to be a Dependent Child pursuant to: Child Abuse.

(1) The child is without proper care or control,

subsistence, education as required by law, or other

care or control necessary for his physical, mental, or

emotional health, or morals.

Adjudicatory Order, 1/18/23, at 2.

However, the juvenile court did not find M.M. was a victim of abuse in

the disposition section of the order.

Victim Of Abuse Determined

The court hereby finds that the Child [(the Decedent)] is a

victim of child abuse as defined as 23 Pa.C.S.A. § 6303, in

that: [the] report is upgraded from indicated to founded

under B.17 and B.19 as to [Mother] and [Appellant].

Id. 8

We note that the juvenile court did not find “aggravated circumstances”

as to M.M.’s dependency.9

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8 The record does not indicate what “B.17” and “B.19” refer to, although we

presume they relate to the court’s internal dependency forms.

9 The Juvenile Act provides:

If the county agency or the child’s attorney alleges the existence of

aggravated circumstances and the court determines that the child is

dependent, the court shall also determine if aggravated circumstances

exist. If the court finds from clear and convincing evidence that

aggravated circumstances exist, the court shall determine whether or

not reasonable efforts to prevent or eliminate the need for removing the

child from the home or to preserve and reunify the family shall be made

or continue to be made and schedule a hearing […].”

(Footnote Continued Next Page)

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Appellant timely filed this appeal. She presents the following issues for

our review:

1. Did the trial court err and/or abuse its discretion by

making a finding of child abuse under the Child

Protective Services Law, 23 Pa.C.S. §§ 6303 and

upgrading [the child abuse] report from indicated to

founded under B.17 and B.19 as to [Appellant],

because the court lacked jurisdiction to make such a

finding against a non-party to a dependency

proceeding: [Appellant] is not a parent, guardian or in

loco parentis to [the subject child, M.M.] or any of his

siblings; [Appellant] was not served with a summons

outlining with specificity the cause of action against

her; nor was she served with a dependency petition

which purported to bring the allegations of child abuse

against her to court. Appellant [] was thus denied her

federal and state constitutional rights to due process?

2. Did the trial court err and/or abuse its discretion

because a dependency proceeding against parents or

guardians in the Court of Common Pleas is not a

proper forum for finding of child abuse against a non-

parent or non-guardian; such a finding is the province

of the Bureau of Hearings and Appeals, and the

Commonwealth Court?

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42 Pa.C.S.A. § 6341(c.1).

Section 6302 defines aggravated circumstances as:

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

physical abuse resulting in serious bodily injury, sexual violence or

aggravated physical neglect by the parent.

42 Pa.C.S.A. § 6341 (emphasis added).

“Aggravated physical neglect” is further defined as: “Any omission in the care

of a child which results in a life-threatening condition or seriously impairs the

child’s functioning.” Id.

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3. Did the trial court err and/or abuse its discretion by

making a finding of child abuse under the Child

Protective Services Law, 23 Pa.C.S. §§ 6301-6385

because [DHS] did not present clear and convincing

evidence of each of the necessary elements of such a

finding.

Appellant’s Brief at 6.

These issues concern the complicated interface between the Child

Protective Services Law and the Juvenile Act. Questions regarding the

application or interpretation of a statute are questions of law, for which our

standard of review is de novo and our scope of review is plenary. See E.C.S.

v. M.C.S., 256 A.3d 449, 454 (Pa. Super. 2021); see also Interest of D.R.,

232 A.3d 547, 554-55 (Pa. 2020) (citation omitted).

A court’s role when interpreting a statute is to determine

the intent of the General Assembly so as to give it its

intended effect. 1 Pa.C.S. § 1921(a). “In discerning that

intent, the court first resorts to the language of the statute

itself. If the language of the statute clearly and

unambiguously sets forth the legislative intent, it is the duty

of the court to apply that intent to the case at hand and not

look beyond the statutory language to ascertain its

meaning.” In re L.B.M., 161 A.3d 172, 179 (Pa.

2017); see also 1 Pa.C.S. § 1921(b) (“When the words of

a statute are clear and free from all ambiguity, the letter of

it is not to be disregarded under the pretext of pursuing its

spirit.”).

D.R., 232 A.3d at 555.

We begin our discussion with necessary background. 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.”

Interest of C.B., 264 A.3d 761, 771 (Pa. Super. 2021) (en banc) (citation

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omitted); see also 23 Pa.C.S.A. § 6302(b). Upon receiving a report of alleged

child abuse, the Department of Human Services, or its designated county

children and youth agency, investigates the veracity of the allegations. Under

the CPSL, “[t]he term ‘child abuse’ shall mean intentionally, knowingly or

recklessly doing” any of an express list of ten forms of conduct including, inter

alia, “[c]ausing bodily injury to a child through any recent act or failure to

act[,]” “[c]reating a reasonable likelihood of bodily injury to a child through

any recent act or failure to act[,]” and, “[c]ausing serious physical neglect of

a child.” 23 Pa.C.S.A. § 6303(b.1)(1), (5), (7).10

After the agency completes its investigation, it categorizes the

investigated report as “indicated,” “founded,” or “unfounded.” Id. §

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10 Section 6303 further defines “serious physical neglect” as:

Any of the following when committed by a perpetrator

that endangers a child’s life or health, threatens a child’s

well-being, causes bodily injury or impairs a child’s

health, development or functioning:

(1) A repeated, prolonged or egregious failure to

supervise a child in a manner that is appropriate

considering the child’s developmental age and

abilities.

(2) The failure to provide a child with adequate

essentials of life, including food, shelter or medical

care.

Id. § 6303(a) (definition of “serious physical neglect”).

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6368(n)(1); see also J.F. v. Department of Human Services, 245 A.3d

658, 660 (Pa. 2021).

A report of suspected child abuse is “unfounded” if the report

cannot be either indicated or founded. Id. § 6303(a) (definition

of “unfounded report”). An “indicated” report is one wherein

the determination relies on DHS's or the county agency's own

assessment that their investigation revealed “substantial

evidence of the alleged abuse by a perpetrator exists based on”

available medical records, the child protective services

investigation, or an admission of the acts of abuse by the

perpetrator. Id. (definition of “indicated report”). 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. Id. (definition of “founded report”).

J.F. v. Department of Human Services, 245 A.3d 658, 660-61 (Pa. 2021)

(some internal quotations omitted).

When a report of child abuse is substantiated as either “indicated” or

“founded,” or amended from “indicated” to “founded,” the named perpetrator

is provided with notice of the status, including the effect of a substantiated

report upon future employment opportunities involving children, and the

individual’s name is added to the statewide child abuse database – i.e., the

ChildLine Registry – where it could remain indefinitely. J.F., 245 A.3d at 661

(citing 23 Pa.C.S.A. §§ 6331, 6338(a), 6368(f)). A perpetrator’s inclusion on

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a statewide database has a “bundle of consequences,” thereby implicating an

individual’s right to due process. Id. at 671.11

The substantive difference between an “indicated” report and a

“founded” report is how the veracity of the allegations is established, and the

mechanism by which an individual – once deemed a perpetrator – can contest

that designation. An “indicated” report is based on the agency’s own

assessment. J.F., 245 A.3d at 660. An individual named in an “indicated”

report may “request an administrative review by, or appeal and request a

hearing before, the [Department of Human Services] secretary.” Id. at 661

(citing 23 Pa.C.S.A. § 6341(a)(2)). “Unlike an indicated report, which is solely

an agency-level adjudication, a founded report additionally reflects a judicial

adjudication or disposition made based on the same factual circumstances.”

Id. at 671. The CPSL affords individuals named as perpetrators in “founded”

reports of child abuse no rights to administrative or judicial review. However,

these individuals are not entirely without recourse, as our Supreme Court

explained:

If [a dependency court] finds the parent to have

perpetuated abuse, the relevant [county protective

services] agency would file with the Department of Public

Welfare a “founded report” as defined by Section 6303(a) of

the CPSL, which would trigger inclusion on the statewide

ChildLine Registry, which is also governed by the CPSL,

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11 These consequences include: the prohibition of employment, volunteer,

foster parent, adoption, and housing opportunities to individuals named as a

perpetrator in the statewide database. See 23 Pa.C.S.A. §§ 6344, 6344.1,

6344.2.

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specifically 23 Pa.C.S. § 6331. The finding of child abuse in

a dependency proceeding can be appealed to the Superior

Court[…]. An individual can also petition to expunge the

founded report from ChildLine through a Department of

Public Welfare administrative process that would eventually

be subject to appeal in the Commonwealth Court.

Additionally, the inclusion on the ChildLine Registry can be

triggered outside of the Juvenile Act’s dependency process

through the filing by [child protective services] agency or

the Department of Public Welfare of an “indicated report” of

child abuse when “substantial evidence” exists that an

individual perpetrated child abuse as defined in Section

6303(a). 23 Pa.C.S. §§ 6303(a), 6331(3). […] As with a

founded report, an individual may petition for the

expungement of an indicated report through DPW’s

administrative process that could eventually be appealed to

the Commonwealth Court.

Interest of L.Z., 111 A.3d 1164, 1176-77 (Pa. 2015) (footnotes omitted).

Our Supreme Court further explained: “Because the ‘founded’

designation is dependent upon a judicial determination, the denial of a hearing

on an administrative appeal of a founded report has typically been upheld by

the Commonwealth Court where it could constitute an impermissible collateral

attack on the judicial action.” J.F., 245 A.3d at 671-72 (citations omitted).12

This appeal concerns the precise conditions whereby a judicial

adjudication may serve as a basis for designating a report as “founded.” The

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12 Appellant’s appeal to this Court is proper for these reasons. As the High

Court explained, the Superior Court traditionally hears appeals regarding child

abuse determinations within dependency orders; moreover, if Appellant

directly sought an administrative appeal, where she presented these issues,

the same might have been construed as a collateral attack on the juvenile

court’s substantive decision.

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CPSL provides an exhaustive list of situations in which judicial determination

(or disposition) 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 abused and the adjudication involves the

same factual circumstances involved in the

allegation of child abuse. The judicial adjudication

may include any of the following:

(i) The entry of a plea of guilty or nolo contendere.

(ii) A finding of guilt to a criminal charge.

(iii) A finding of dependency under 42

Pa.C.S.A. § 6341 (relating to adjudication) if

the court has entered a finding that a child

who is the subject of the report has been

abused.

(iv) A finding of delinquency under 42 Pa.C.S.A. §

6341 if the court has entered a finding that the

child who is the subject of the report has been

abused by the child who was found to be

delinquent.

(2) There has been an acceptance into an accelerated

rehabilitative disposition program and the reason for the

acceptance involves the same factual circumstances

involved in the allegation of child abuse.

(3) There has been a consent decree entered in a juvenile

proceeding under 42 Pa.C.S. Ch. 63 (relating to juvenile

matters), the decree involves the same factual

circumstances involved in the allegation of child abuse

and the terms and conditions of the consent decree

include an acknowledgment, admission or finding that a

child who is the subject of the report has been abused by

the child who is alleged to be delinquent.

(4) A final protection from abuse order has been granted

under section 6108 (relating to relief), when the child

who is a subject of the report is one of the individuals

protected under the protection from abuse order and:

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(i) only one individual is charged with the abuse in

the protection from abuse action;

(ii) only that individual defends against the charge;

(iii) the adjudication involves the same factual

circumstances involved in the allegation of child

abuse; and

(iv) the protection from abuse adjudication finds

that the child abuse occurred.

23 Pa.C.S.A. § 6303(a) (definition of “founded report”) (emphasis added).

This matter implicates subsection (1)(iii) of the definition above. Proper

application of that subsection might entail the following scenario: A county

protective services agency receives a report of a parent’s child abuse.

Following an investigation, the agency petitions the juvenile court to

adjudicate the child dependent under the Juvenile Act – that is to say, the

child is without proper parental care. See 42 Pa.C.S.A. §§ 6302 (definition of

“dependent child”), 6341 (relating to adjudication). Supposing that the

juvenile court subsequently finds that the child was, in fact, abused and grants

the dependency petition, then the court’s adjudication could serve as a basis

for designating the parent’s child abuse report as “founded.” In this

hypothetical, the parent was a party to the dependency proceedings, received

notice, and was afforded an opportunity to be heard.

Returning to the instant matter, Appellant’s first and second appellate

issues present an interconnected jurisdictional question. She challenges

whether the juvenile court may “upgrade” – i.e., amend – a non-party’s report

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of abuse from “indicated” to “founded.” 13 In essence, Appellant argues that

the juvenile court lacked jurisdiction to make a legal determination of child

abuse against her, a non-party, to amend her report from “indicated” to

“founded.” Appellant argues further that the adjudication of M.M. cannot

serve as a basis for amending her report, because the dependency

adjudication implicated Mother, not her.

Aside from the jurisdictional component, Appellant maintains she was

not afforded proper notice, and thus she was not afforded a meaningful

opportunity to be heard. She reasons that emailed service of a redacted

version of Mother’s dependency petition did not amount to proper notice –

especially since the dependency petition only focused on Mother’s conduct,

not the acts or omissions of Appellant. Lastly, in her third appellate issue,

Appellant challenges the substantive finding that she was a perpetrator of

child abuse, as defined by the CPSL.

We begin our analysis with Appellant’s jurisdictional challenge.

Appellant’s argument hinges on the fact that she was not a party to the

underlying dependency proceeding. In the context of a dependency

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13 Often, and upon the request from the child protective services agency, a

juvenile court’s dependency order will include an explicit provision determining

the report to be “founded,” upon its finding that the child was abused. Such

a provision serves the purpose of removing doubt whether the adjudication

was sufficiently based on the report’s child abuse allegation. Still, it is the

decision of the agency to file the report as “founded” on the ChildLine

Registry, upon the agency’s conclusion that the court’s adjudication met the

necessary criteria under the CPSL’s definition of “founded reported.” See L.Z.,

111 A.3d at 1176-77.

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proceeding, we have defined a party to include “(1) the parents of the juvenile

whose dependency status is at issue; (2) the legal custodian of the juvenile

whose dependency status is at issue; (3) the person whose care and control

of the juvenile is in question.” In Interest of M.R.F., III, 182 A.3d 1050,

1055 (Pa. Super. 2018) (citations omitted); see also 42 Pa.C.S.A. § 6302

(defining a dependent child as inter alia one “without a parent, guardian, or

legal custodian” and providing that “[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.”). We explained that “[t]hese categories logically stem

from the fact that upon an adjudication of dependency, the court has the

authority to remove a child from the custody of his or her parents or legal

custodian.” M.R.F., 182 A.3d at 1055 (citing In re J.S., 980 A.2d 117, 120

(Pa. Super. 2009)).

Appellant was obviously not a parent. Significantly, she was also not a

“caregiver,” nor a “custodian,” for purposes of the Juvenile Act, which defines

those individuals as follows:

“Caregiver.” A person with whom the child is placed in an

out-of-home placement, including a resource family or an

individual designated by a county agency or private agency.

The resource family is the caregiver for any child placed with

them.

[…]

“Custodian.” A person other than a parent of legal

guardian, who stands in loco parentis to the child, or a

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person to whom legal custody of the child has been given

by order of court.

42 Pa.C.S.A. § 6302.

Appellant meets neither of these definitions. None of Mother’s three

Children was placed with Appellant. Appellant was not the guardian of any of

the three Children, nor had she obtained legal custody through a court order.

Nor did Appellant stand in loco parentis, a status that would have required

Mother to “discharge” her “parental duties,” and for Appellant to assume the

same. See, e.g., Interest of K.N.L., 284 A.3d 121, 145 (Pa. 2022).

Although Appellant, by her own admission, moved into the home to help

Mother care for the Children, Appellant was ultimately not “a person whose

care and control” of the child was in question. For example, a live-in nanny

would similarly not qualify, nor would a teacher. Notably, the juvenile court,

DHS, and the GAL concede that Appellant was not a party to the dependency

proceedings. DHS even relied on this fact to explain to the juvenile court why

it did not have to serve Appellant in accordance with the normal juvenile court

procedure reserved for parents, guardians, or other custodians.14 Quite

clearly, Appellant was not a party to the dependency proceedings.

____________________________________________

14DHS maintained that it did not have to serve Appellant with the dependency

petition it filed against Mother; moreover, Appellant notes that DHS did not

seek the issuance of a summons, either.

The Juvenile Act requires the court to direct the issuance of a summons to

“the parents, guardian, or other custodian, guardian ad litem, and any other

persons as appear to the court to be proper or necessary parties to the

(Footnote Continued Next Page)

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Having established that Appellant was not a party to the underlying

dependency adjudication, we next address the effect Appellant’s non-party

status had on the juvenile court’s ability to implement the CPSL against her.

Notwithstanding Appellant’s non-party status, the Appellees maintain the

juvenile court had the ability to make a child abuse finding against Appellant,

such that the dependency adjudication could ultimately serve as the basis to

amend Appellant’s “indicated” report to “founded.” They reason that while

Appellant did not meet the definition of a “party” under the Juvenile Act, she

did meet the definition of a “perpetrator,” as well as the definition of “person

responsible for the welfare of the child” under CPSL Sections 6303

(“Definitions”) and 6381(d) (“Prima facie evidence of abuse”).15 See

____________________________________________

proceeding, requiring them to appear before the court at the time fixed to

answer the allegations of the [dependency] petition.” 42 Pa.C.S.A. § 6335(a)

(emphasis added). The Rules of Juvenile Court Procedure provide, “[t]he

court shall issue a summons compelling all parties to appear for the

adjudicatory hearing.” Pa.R.C.P. 1360(A) (emphasis added). The summons

shall include, inter alia, a copy of the dependency petition. See Pa.R.C.P.

1360(C)(5).

DHS did not follow this procedure, because it concluded Appellant was not a

party to the dependency proceedings. Instead, DHS subpoenaed Appellant as

a witness, pursuant to 42 Pa.C.S.A. § 6333(a). When the juvenile court

ultimately directed DHS to provide Appellant with some form of notice, it

apparent did so under Pa.R.J.C.P. 1361(7) (“The court shall give notice of the

adjudicatory hearing to: (7) any other persons as directed by the court.”)

(emphasis added).

15 Sections 6303 and 6381 of the CPSL set forth, who may be deemed a

“perpetrator,” and how the evidentiary standard applies when a child is abused

(Footnote Continued Next Page)

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generally T.C.O. at 12-13, 17-19; see also DHS’s Brief at 17-20; and see

GAL’s Brief at 8-12.

Under these CPSL provisions, the juvenile court opines – and the

Appellees argue – that the court had jurisdiction because Appellant was: an

adult; who lived with Mother and the Children; for the express purpose of

helping Mother care for the Children. While Appellant might not be a party

under the Juvenile Act, they maintain that Appellant fit squarely under the

CPSL. In other words, if Appellant was not a caregiver under the Juvenile Act,

she was still a caregiver under the CPSL. Moreover, to the extent Appellant

does not fit neatly within the Juvenile Act, the GAL emphasizes that the

definition sections of the Juvenile Act and the CPSL must be read together to

resolve complaints of child abuse. See GAL’s Brief at 8 (citing In re J.R.W.,

631 A.2d 1019, 1022 (Pa. Super. 1992)). Without citation to authorities, DHS

argues: “Pennsylvania law holds that [a] dependency court has jurisdiction

over a person who is alleged to have abused a child and the CPSL authorizes

____________________________________________

in the care of a person responsible for the child’s welfare. Under the CPSL, “a

perpetrator” is an individual who has committed child abuse (as defined by

the CPSL) and who is, inter alia: “An individual 14 years of age or older who

resides in the same home as the child.” 23 Pa.C.S.A. § 6303(a) (definition of

“perpetrator”). The CPSL further defines “a perpetrator for failing to act” to

include: “A person 18 years of age or older who resides in the same home as

the child.” Id. Elsewhere in the CPSL, Section 6381(d) creates the rebuttable

presumption that, when a child suffers abuse that would not ordinarily occur

but for the acts or omissions of a person responsible for the child’s care, then

that individual is responsible. See 23 Pa.C.S.A. § 6381(d); see also L.Z.,

111 A.3d at 1185.

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the dependency court to enter an abuse finding in a dependency proceeding.”

See DHS’s Brief at 15.

At first glance, the reasoning of the juvenile court and Appellees appears

sound. Indeed, we have said that the Juvenile Act and the CPSL must be read

together in the resolution of child abuse complaints and “reference must be

made to the definition sections of both the [CPSL] and the [Juvenile Act] to

determine how that finding of child abuse is interrelated.” C.B., 264 A.3d at

770 (citing J.R.W., 631 A.2d at 1022). However, the rationale set forth by

the juvenile court and the Appellees ultimately misconstrues the interplay

between the CPSL and the Juvenile Act.

The question is not whether a juvenile court, sitting under the Juvenile

Act, can make a finding of “child abuse” under the CPSL. That question has

long been settled. Of course, the juvenile court has jurisdiction to implement

the CPSL; in fact, we said that it would be “totally spurious” to argue

otherwise. J.R.W., 631 A.2d at 1023.16 But the question Appellant asks is

whether the juvenile court had authority over her, a non-party, to do the

things it would normally be authorized to do to proper parties – namely, make

a legal determination of child abuse under the CPSL, which could ultimately

serve as the basis for a founded report. The answer to that question is no.

____________________________________________

16 “[B]y mandate of the [CPSL], the one and only available resource for

custody, change of custody or detention of a child who is suspected of being

abused under the [CPSL] is the juvenile court pursuant to the Juvenile Act.”

J.R.W., 631 A.2d at 1023 (citing 23 Pa.C.S.A. § 6315 (“Taking child into

protective custody”)).

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

a vehicle for reporting abuse. C.B., 264 A.3d at 770 (citing J.R.W., 631 A.2d

at 1022). “The [Juvenile] Act, however, is a procedural act which establishes

jurisdiction in the courts to legally intervene and make findings of dependency

which [could] also include[] child abuse.” J.R.W., 631 A.2d at 1022.

In cases predating the current iteration of the CPSL, we explained:

Even though the Juvenile Act and the CPSL are

complementary in nature, neither of the acts provide for an

independent action of “abuse.” In Interest of Justin S.,

[543 A.2d 1192, 1197 (Pa. Super. 1988)]; In Interest of

M.B., 514 A.2d 599 (Pa. Super. 1986) affirmed per curiam,

538 A.2d 496 (Pa. 1988). “[W]e have held that [the] CPSL

does not create or include a separate action for child abuse

[…].” In Interest of Justin S., 543 A.2d at 1197 (citing In

Interest of R.M.R. [530 A.2d 1381 (Pa. Super. 1987)]).

In Interest of R.T., 592 A.2d 55, 59 (Pa. Super. 1991).

Under the prior iteration of the CPSL, a founded report may be based

on a “judicial adjudication of child abuse.” See R.M.R., 530 A.2d at 1384-85;

see also 11 P.S. § 2203 (repealed). This Court grappled with the ambiguity

of what may constitute a “judicial adjudication of child abuse” to answer the

larger question of whether the CPSL provided for an independent cause of

action. Id. Ultimately, we concluded that the CPSL does not provide for an

independent action for child abuse, and for the relevant provisions of the CPSL

to apply, there must be a previously recognized cause of action. Id. at 1385.

Although these cases concerned the prior iteration of the CPSL, the

substantive difference between the prior and current iterations only buttresses

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Appellant’s argument that the juvenile court lacked jurisdiction to find that

she committed “child abuse” under the CPSL. The current CPSL now specifies

what types of “judicial adjudications” may serve as basis for a founded report.

See 23 Pa.C.S.A. § 6303(a) (definition of “founded report”). They are: the

entry of a guilty plea or nolo contendere; a finding of guilt to a criminal charge;

acceptance into an accelerated rehabilitative disposition (ARD) program; a

final Protection From Abuse (PFA) order; an adjudication of delinquency; a

consent decree relating to juvenile delinquency; and finally, an adjudication

of dependency. See id. Thus, for a report to be founded, the finding of abuse

must stem from one of these recognized causes of action. If an alleged

perpetrator is not a party to one of these underlying causes of action, then it

follows that the court lacks authority under the CPSL to make a finding of child

abuse, such that the alleged perpetrator’s report could be deemed “founded.”

We understand that the juvenile court attempted to afford Appellant

notice and an opportunity to be heard. The hearing was continued several

times over the course of eight months; Appellant was appointed counsel; and

at the hearing, Appellant was given an opportunity to introduce evidence and

cross-examine witnesses. The CPSL does not provide for an independent

cause of action, and because Appellant was not party to the dependency

proceedings, it is not surprising that DHS and the juvenile court were

perplexed as to how Appellant should receive notice. DHS had no mechanism

to seek a “finding” of abuse against Appellant. In any event, our conclusion

regarding the jurisdictional aspect of this case renders moot the rest of

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Appellant’s procedural due process claim. The juvenile court had no authority

under the CPSL to make a legal determination of abuse against Appellant to

deem her report “founded” – no matter what process was given, no matter

the evidence of her culpability, because Appellant was not a party to this

case.17

The effect of our decision does not leave local child protective services

agencies without recourse to protect children from alleged abusers. Indeed,

DHS already determined Appellant was “indicated” for abuse.

In sum, we conclude the juvenile court exceeded its authority, as

conferred by 23 Pa.C.S.A. § 6303(a) (definition of “founded report”), to find

that Appellant committed child abuse for the purpose of deeming her report

“founded.” Because we conclude that the juvenile court exceeded its authority

under the CPSL, we do not address Appellant’s other issues. This Court has

no authority to address the propriety of Appellant’s “indicated” report; the

____________________________________________

17 In reaching this conclusion, we are cognizant of dependency cases where

the juvenile court had made findings of child abuse against stepparents or

parents’ significant others. See, e.g., Interest of K.D., 2023 WL 3916155

(Pa. Super. June 9, 2023) (non-precedential decision). In some instances,

the local child protective services agency categorized their reports as

“founded.” See, e.g., J.M. v. Department of Public Welfare, 94 A.3d 1095,

1099 (Pa. Cmwlth. 2014); see also J.P. v. Department of Human

Services, 150 A.3d 173 (Pa. Cmwlth. 2016). But among this line of cases,

we have not discovered one in which the stepparent or significant other

challenged the juvenile court’s jurisdiction, as Appellant does here. Although

we might fairly distinguish this line of cases as involving “guardians,”

“individuals with in loco parentis status,” or other individuals whose “care and

control” of the child was in question (i.e., proper parties to dependency

proceedings), those scenarios are not before us.

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proper procedure for challenging that determination is explained above. See

J.F., 245 A.3d at 661.

Order vacated insofar as it pertains to Appellant’s report being

“founded.”

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/2023

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