The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: T.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.B. :
:
:
:
:
: No. 2231 EDA 2023
Appeal from the Order Entered July 26, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000717-2021
BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 13, 2024
Appellant D.B. appeals from the Order of the Court of Common Pleas of
Philadelphia County, Juvenile Division, adjudicating his minor stepchildren
dependent and finding he was a perpetrator of child abuse pursuant to Section
6303(b.1)(1) of the Child Protective Services Law (“CPSL”).1 On appeal, D.B.
argues that the Philadelphia Department of Human Services (“DHS”) did not
present clear and convincing evidence that he committed child abuse against
his 13-year-old stepdaughter, T.F. We affirm.
The trial court sets forth the relevant facts and procedural history, as
follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 23 Pa.C.S. §§ 6301-6387.
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S.M.[(“Mother”)] is the mother of child, T.F., and D.B. was
Mother’s paramour.[2] T.F. is currently 13 years of age. T.F.
resided in the family home with [Mother] and D.B., and her
younger sister. [DHS] became involved with the family in May of
2021 when it received allegations of domestic violence between
D.B. and [Mother] as well as allegations concerning excessive and
problematic alcohol consumption by [Mother]. On July 13, 2021,
DHS received a Child Protective Services (“CPS”) report alleging
that T.F. had been sexually abused by D.B. and had been
physically abused by [Mother]. This report was indicated. (N.T.
June 29, 2023, Pages 8 to 11).
Zoharmella Savoy is employed by DHS and assigned to the MDT
Unit.[3] Her duties include investigating reports of child abuse.
She testified that she visited the family home shortly after
receiving the CPS report that initiated the child abuse
investigation. She arrived at the residence and knocked on the
door which was answered by [Mother]. D.B. was also present on
the first floor and was dressed in his underwear [(later described
as boxer shorts. D.B. put on pants before Investigator Savoy
entered the home)]. T.F. and her sister were upstairs. After
[D.B.] got dressed, Ms. Savoy provided D.B. verbal and written
notification of the report and a review of his rights. D.B.
responded by telling Ms. Savoy that he was already “cleared of
____________________________________________
2 The record contains numerous references to D.B. as T.F.’s stepfather.
Notably DHS Investigator Zoharmella Savoy testified that the initial CPS report
filed in this matter referred to D.B. as Mother’s paramour, but she corrected
the record to indicate that “[i]t was learned later that he was the stepfather
[at the times in question].” N.T., 6/29/23, at 11. See also N.T. at 106. CUA-
9 Case Manager Nasir Ismail testified that he assumed a female voice he heard
in the background during a phone conversation with D.B. belonged to Mother,
“because at the time they allegedly were married.” For his own part, D.B.
identified himself to the trial court as “Stepfather” at the outset of the
dependency hearing, See N.T., 6/29/23, at 11. Both Mother’s counsel and
DHS counsel also referred to D.B. as “Stepfather.” See N.T., 7/7/23, at 5-6,
30. Finally, we note that counsel for D.B. in his related appeal refers to D.B.
as the children’s “Guardian.”
3 Investigator Savoy explained that the MDT unit handles ongoing cases that
have had valid reports of fatalities, near fatalities, and sex abuse in the past.
The case is “either open with the CUA or just has—had some recent activity.”
N.T., 6/29/23, at 6-7.
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that.” It later became clear to Ms. Savoy that D.B. was speaking
about prior allegations of sexual abuse that occurred in Delaware
County and for which he was not prosecuted.[] During this
discussion, D.B. and [Mother] brought out a binder containing
documents related to a prior CPS report alleging sexual abuse by
D.B. D.B. repeatedly told Ms. Savoy that he was never charged.
[N.T. at 25].
Ms. Savoy also provided [Mother] verbal and written notifications
as well as a review of her rights. [Mother] told her that she did
not believe the allegations against D.B. were true. [N.T. at 52-
53]. She admitted that she subjected T.F. to physical discipline
and that the discipline consisted of striking her with an open and
closed hand. She denied harming or abusing the children. N.T.
6/29/23, at 19-24.
D.B. told Ms. Savoy that Mother hits the children, especially T.F.,
and that he sometimes gets in the middle of it. He mentioned
that Mother struck T.F. in the nose and that her nose was bloodied
on one occasion. He also stated that when Mother drinks she
becomes violent and strikes him as well. N.T. at 26, 27.
Ms. Savoy spoke with T.F. at the residence and during a walk
around the neighborhood. She testified that they walked around
the block because she wanted T.F. to feel safe while talking to her.
Prior to speaking with Ms. Savoy, T.F. stated, “If I talk to you, you
can’t leave me here because that’s what happened before. I said
something and I was stuck here.” Ms. Savoy testified that T.F.
implied that her home situation worsened the last time she spoke
out. N.T. at 28.
T.F. told Ms. Savoy about physical abuse inflicted upon her by
Mother but did not initially disclose the sexual abuse by D.B.
However, T.F. did state that the physical abuse caused by Mother
is often spurred by Mother accusing T.F. of having sexual contact
with D.B. She told Ms. Savoy that Mother often accuses her of
“doing something” with D.B. and sometimes sniffs her vaginal
area to assess whether she has been sexual with D.B. N.T. at 42.
Ms. Savoy decided to acquire an Order of Protective Custody
(“OPC”) for T.F. and her sister based upon the allegations of
physical and sexual abuse as well as the fear expressed by T.F.
during their conversation. N.T. at 28-31. T.F. stressed to Ms.
Savoy that she never allows her younger sister to be alone with
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D.B. and that if T.F. is relocated out of the home that under no
circumstances can her sister be left there without her. N.T. at 45,
46.
Later on, during July of 2021, it was brought to Ms. Savoy’s
attention that T.F. wished to speak to her again. T.F. informed
Ms. Savoy that she was “ready to talk” and wanted to tell Ms.
Savoy everything about the situation concerning Mother and D.B.
T.F. detailed several months of sexual abuse by D.B. the abuse
included being shown pornography, being subjected to oral and
digital penetration and giving and receiving oral sex. She told Ms.
Savoy that she never liked any of the sexual acts and that the
abuse was progressing. She stated that at first D.B. placed her
hand on his genital area and told her how to touch him and what
to do. She described being told to perform oral sex on him and
his digitally penetrating her. T.F. told Ms. Savoy that she was
scared she was going to be raped. T.F. also spoke of being
physically assaulted by Mother on almost a daily basis and
described a recent assault during which she thought her nose
might have been broken. She also described Mother as drinking
alcohol every day. This claim was corroborated by D.B. N.T. at
58-61.
Mr. Ismail testified that he is a social worker who was assigned
this case. He testified that there were two telephone calls made
to his agency’s hotline regarding this case on October 15, 2021
and October 18, 2021. A person who identified himself as Latia
Badu claimed that he had gone through his daughter’s cell phone
and saw months of texts between T.F. and his daughter. The
caller stated that he saw a text sent by his daughter to T.F. and
that the text read, “if you lie on your family, you can live with us.”
In the second telephone call to the hotline, the caller stated, “I’m
from Africa” and that T.F. “called [his] daughter and is making up
lies.” Both calls to the hotline originated from the telephone
number that the agency had on file for D.B. N.T. at 130, 131.
This led Mr. Ismail and this court to conclude that D.B. telephoned
his agency, claimed to be someone else, and alleged that T.F.’s
allegations were fabricated to convince the agency that he did
nothing wrong. [N.T. at 137-140]
Mother testified that she used corporal punishment while raising
her children. She denied causing them injuries that required
medical attention. She claimed that she did not know D.B. was
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sexually assaulting T.F. and stated that she had no reason to
suspect that he was a sexual abuser. She also told the court that
she placed herself in alcohol treatment but attempted to minimize
her drinking by saying that her alcohol use was an accusation that
was not proven and that her daughters’ claims about her
problematic alcohol use were lies. N.T. at 152-164.
T.F. testified about the nature and extent of the physical and
sexual abuse she suffered. She stated that she was sexually
abused by D.B. on multiple occasions and described that abuse as
including his touching her vagina after removing her pants. She
described touching her vagina, mouth, and buttocks with his
penis. She told the court that D.B. placed his penis inside her
mouth and up against, but not inside, her vagina and buttocks.
She described being forced to do these things by D.B. and noted
that the nature of the force was sometimes his words and other
times by physically pulling her toward him. N.T., 2/16/23, 9-18.
She testified that she did not believe that Mother was aware of
this but also testified that Mother referred to D.B. as a pedophile.
T.F. also testified that Mother beat her multiple times. She stated
that Mother frequently beat her with her hands and hit her in the
face, head, and stomach. She described an instance where she
was beaten and she fell to the ground and Mother stood over top
of her and choked her by squeezing her neck with her hands. She
also mentioned that her mother smelled her vaginal area to check
whether D.B. had done anything sexual to her. N.T. at 44-61.
Trial Court Opinion, 9/15/23, at 2-6.
D.B. filed a timely appeal and through newly appointed counsel filed his
Brief of Appellant. In his brief, D.B. presents the following question for this
Court’s consideration:
Did the trial court err in concluding that the Appellant committed
child abuse under 23 Pa.C.S. § 6303(b.1)(1), (b.1)(4), and
(b.1)(6)?
Brief of Appellant, at 4.
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Before we may address D.B.’s appeal on its merits, we must review
whether we have jurisdiction over this matter. In an August 30, 2023,
published decision, this Court found that a dependency court lacks the
authority to make a finding of child abuse against a non-party under the CPSL
in a dependency matter, despite culpability. See Interest of M.M., 302 A.3d
189 (Pa. Super. 2023). In the case sub judice, it is not disputed that Appellant
D.B. neither possessed nor sought recognized party standing in the underlying
dependency matter. Given the decision in Interest of M.M., the Child
Advocate acting on behalf of T.F. and the Department of Human Services each
has notified this Court that it shall not submit briefs defending the trial court’s
July 7, 2023, finding of child abuse against D.B.
In Interest of M.M., this Court concluded that a juvenile court may not
upgrade a DHS-created “indicated report” of an individual’s act of abuse to a
judicially decided “founded report” of abuse if the individual was not a party
to the dependency action. The case arose from a dependency action filed
against the mother of three children: 11-year-old son, M.M., 13-year-old
daughter C.S., who had died recently from complications related to chronic
neglect and advanced anorexia,4 and 13-year-old son Ch.S. who consequently
fled the household and remained “AWOL.”
A post-mortem investigation into the death of C.S. generated a CPS
report that an adult family friend, E.M., lived in Mother’s household, claimed
____________________________________________
4 An autopsy report concluded that C.S. died from inanition, which was defined
as starvation to the point of organ failure and death. Id. at 194.
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to have a “maternal aunt”-like relationship with the children, and routinely
slept in the same bed as C.S. On the day C.S. died, E.M. told investigators
that C.S. had been slow to respond to her prodding at 7 a.m., seemed
disoriented, and had a racing heartbeat. E.M. said she returned two hours
later to check on C.S., and C.S. was nonresponsive. EMTs were summoned
and found C.S. unconscious and wearing an adult diaper. They transported
C.S. to a local hospital where she was pronounced dead after failed efforts to
revive her.
DHS concluded its investigation by filing an “indicated” report finding
child abuse in Mother’s household and naming both Mother and E.M. as
perpetrators for their failure to provide C.S. with necessary medical care. The
circumstances surrounding the death of C.S. prompted DHS to file a
dependency action against Mother, alleging that her 11-year-old son, M.M.,
was without proper parental care or control.5
E.M. appeared at the dependency action not as a named party but only
in answer to a witness subpoena. After the first day, the court appointed
counsel for E.M. in an “unassigned role.”
The four-day dependency proceedings against Mother culminated with
a substantive adjudicatory hearing held on the final day, at which Appellant
E.M., through counsel, continued to raise objections that the juvenile court
lacked authority under the CPSL to amend E.M.’s report of child abuse from
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5 In March 2022, Ch.S. went “AWOL” two days after DHS obtained an order of
protective custody for the Decedent’s surviving brothers.
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an agency “indicated” report to a judicially-“founded” report where only the
mother was named a party to the dependency action. Specifically, E.M.
argued that because she neither was named a party to the underlying
dependency action nor received a formal petition or other documentation
notifying her that DHS sought to establish a judicial “finding” of child abuse
against her through the juvenile court hearing, the court had no jurisdiction
over her. The juvenile court overruled E.M.’s objections, found she had
committed child abuse for the purpose of deeming her report “founded”, and
entered its adjudicatory order to that effect Id. at 203. E.M. appealed.
On appeal, we vacated the adjudicatory order “insofar as it pertains to
Appellant’s [(E.M.’s)] report being ‘founded’” because E.M. was not a “party”
to the dependency hearing, and a juvenile court has no authority over a non-
party to do those things it normally may do to parties, such as make a legal
determination of child abuse under the CPSL that serves as a predicate to
upgrading a child abuse report to judicially “founded.” Id. at 201-202.6 We
explained that a “party” under governing authority may include only a parent
of the juvenile whose dependency status is at issue, the legal custodian of the
juvenile, and the person whose care and control of the juvenile is in question.
Id.
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6 Interest of M.M. identifies what types of “judicial adjudications” may serve
as a basis for a founded report under the CPSL and observes, “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.”
Id. at 202.
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Under the facts, we determined that E.M. obviously was not the parent,
nor was she a custodian or a caregiver for purposes of the Juvenile Act. Id.
at 200 (setting forth definitions under 42 Pa.C.S.A. § 6302).7 Although E.M.
admitted she moved in to help Mother care for the children, she “was
ultimately not ‘a person whose care and control’ of the child was in question.”
Id. As we observed,
“None of Mother’s three Children was placed with Appellant
[(E.M.)]. 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.
...
For example, a live-in nanny would similarly not qualify, nor would
a teacher. Notably, the juvenile court, DHS, and the GAL concede
that [E.M.] 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
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7 Section 6302 of the Juvenile Act sets forth the following definitions:
“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 or legal guardian, who
stands in loco parentis to the child, or a person to whom legal
custody of the child has been given by order of a court.
42 Pa.C.S.A. § 6302.
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court procedure reserved for parents, guardians, or other
custodians.
Id. at 201.
Therefore, acknowledging that E.M. was not a party to the dependency
proceedings and that the CPSL does not provide for an independent cause of
action, we held, “The juvenile court had no authority under the CPSL to make
a legal determination of abuse against Appellant [E.M.] to deem her report
“founded” – no matter what process was given, no matter the evidence of her
culpability, because Appellant [E.M.] was not a party to this case.”
However, footnote 17 in Interest of M.M. acknowledged a possible
exception to its holding:
“[i]n 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. . . . 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.”
Id. at 203 n.17 (citations omitted).
In the case sub judice, Appellant was recognized by the trial court,
Mother, participating agencies, and all counsel as T.F.’s stepfather. As such,
D.B.’s care and control of the child as co-head of T.F.’s household was a central
issue at the dependency hearing, although the trial court did not name him a
party as such. Nevertheless, D.B’s status as a stepfather residing in the
household, which, he maintains in his appellate brief, confers upon him the
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status of a “guardian”,8 qualifies him as a “proper party to the dependency
proceeding” under to the rationale of Interest of M.M.
Again, Interest of M.M. defined a party in a dependency hearing 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.”
Id. at 199 (emphasis added). E.M., the appellant in that case, challenged the
court’s jurisdiction over her when she was neither a named party nor a “party”
under any other definition accepted by pertinent authority. Indeed, the
dependency adjudication implicated only the mother, not E.M. Id.
In contrast, as an undisputed stepfather of T.F. during both the time of
T.F.’s abuse and the dependency hearing in question, D.B.’s status in the
household and relation to T.F. placed him within those “categories”, identified
in Interest of M.M., “[that] 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[,]” leaving the child
“without a parent, guardian, or legal custodian.” Id. The lack of proper care
or control may be based on evidence of conduct by the parent, guardian, or
custodian that places child at risk. Id. at 200.
Therefore, we distinguish D.B.’s status from that of E.M. in Interest of
M.M., as he was a person whose care and control of the juvenile T.F. qualified
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8 We need not address the question of whether D.B. has accurately defined
himself as a guardian.
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him as a party over whom the trial court had jurisdiction. Accordingly, we
proceed to address his issue on appeal.
The Pennsylvania Supreme Court has set forth our standard of review
for dependency cases as follows:
The standard of review in dependency cases requires an appellate
court to accept findings of fact and credibility determinations of
the trial court if they are supported by the record, but does not
require the appellate court to accept the [trial] court's inferences
or conclusions of law. We review for abuse of discretion[.]
In the Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (quotation marks
and quotation omitted).
Where, as in the case sub judice, the trial court deems parents to be
perpetrators of child abuse under the CPSL, we note that “[although]
dependency proceedings are governed by the Juvenile Act[9]...the CPSL
controls determinations regarding findings of child abuse, which the [trial]
courts must find by clear and convincing evidence.”10 In the Interest of L.V.,
209 A.3d 399, 417 (Pa. Super. 2019) (citations and footnotes omitted)
(footnote added). “[T]he [Juvenile] Act and the [CPSL] must be applied
together in the resolution of child abuse complaints under the [CPSL and]
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9 Pennsylvania Juvenile Act (“Juvenile Act”), 42 Pa.C.S.A. §§ 6301-6375.
10 “Clear and convincing evidence” is defined as evidence that is “so clear,
direct, weighty[,] and convincing as to enable the trier of fact to come to a
clear conviction, without hesitance, of the truth of the precise facts in issue.”
In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc)
(quotation marks and quotation omitted).
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reference must be made to the definition sections of both the [Juvenile Act]
and the [CPSL] to determine how that finding [of child abuse] is interrelated.”
In the Interest of J.R.W., 631 A.2d 1019, 1023 (Pa. Super. 1993).
As part of [a] dependency adjudication, a court may find a parent...to
be the perpetrator of child abuse[ ] as defined by the...CPSL.” In the
Interest of S.L., 202 A.3d 723, 728 (Pa. Super. 2019) (quotation marks and
quotations omitted). Under the CPSL, “child abuse” is defined as
“intentionally, knowingly, or recklessly doing” one of many acts, including
causing bodily injury11 to a child through any recent act or failure to act. See
23 Pa.C.S.A. § 6303(b.1) (defining “child abuse”).12
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11 The CPSL defines “bodily injury” as “[i]mpairment of physical condition or
substantial pain.” 23 Pa.C.S.A. § 6303(b.1) (defining “bodily injury”).
12 The CPSL directs to 18 Pa.C.S. § 302(b) to define “intentionally”,
“knowingly”, and “recklessly.”
(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
(Footnote Continued Next Page)
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Nevertheless, we have observed that Section 6381(d) provides for an
“attenuated” standard of evidence in making a legal determination as to the
abuser in child abuse cases when the serious injury suffered would not
ordinarily occur except by acts or omissions of the parent or other person
responsible for the child’s welfare. Specifically, in Interest of C.B., 264 A.3d
761, 773 (Pa. Super. 2021) (en banc) this Court held that a trial court's
culpability determination as to whether the child abuse was intentional,
knowing, or reckless is “superfluous”:
Under Section 6381 of the CPSL, a petitioning party is not required
to establish that the parent or caregiver perpetrated the abuse
“intentionally, knowingly, or recklessly.” Rather, in Section 6381
cases, “the fact of abuse suffices to establish prima facie evidence
of abuse by the parent or person responsible,” permitting
petitioners to “prove their case with only the physical evidence of
injuries that would not ordinarily be sustained but for the action
[or inaction] of the parents or responsible person and the
implausible statements of the parents and responsible persons.”
Id. (quotation and citations omitted). See 23 Pa.C.S.A. § 6381(d).
____________________________________________
(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.A. § 302(b).
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We observed, further, how in Interest of J.R.W. this Court recognized:
This lessened standard of establishing abuse by
the caretakers [under Section 6381(d)], coupled
with the clear and convincing evidence
necessary to find dependency, has been
imposed by the Legislature as the standard
which the [trial court] must apply in deciding
abuse cases. Prima facie evidence is not the
standard that establishes the child has been abused,
which must be established by clear and convincing
evidence; it is the standard by which the court
determines whom the abuser would be in a given
case. There is no conflict, constitutional or otherwise,
with the clear and convincing evidence standard
imposed by the Act to establish child abuse. The
Legislature has determined that the likelihood
clearly established abuse has occurred, other
than at the hands of the custodian, is so small
that prima facie evidence the custodian has
caused the injury, either by acts or omissions, is
all that is required. We find no defect in this
reasoning. Such a standard provides maximum
protection for the child victim or other children in the
community who might be subject to similar abuse if
the alleged abuser was not identified and permitted
free access to the victim or other vulnerable children.
It is not equivalent to a finding of guilt in a criminal
proceeding which could result in deprivation of
freedom. Thus[,] the [L]egislature has balanced the
needs of society and children for protection against
the abuser's possible patterned behavior and his/her
right to freedom unless found guilty beyond a
reasonable doubt.
Interest of J.R.W., 631 A.2d at 1024.
Interest of C.B., 264 A.3d at 771-72 (emphasis in original).
Under Section 6381(d), a parent or other responsible caregiver may
rebut the prima facie presumption with evidence:
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[d]emonstrating that the parent or responsible person did not
inflict the abuse, potentially by testifying that they gave
responsibility for the child to another person about whom they had
no reason to fear or perhaps that the injuries were accidental
rather than abusive. The evaluation of the validity of the
presumption would then rest with the trial court evaluating the
credibility of the prima facie evidence presented by...[DHS]...and
the rebuttal of the parent or responsible person.
Interest of C.B., 264 A.3d at 772 (quoting In re L.Z., 111 A.3d at 1185)
(acknowledging, further, that a parent does not actually have to be physically
present with the child at the time of the abuse for the presumption to apply
to that parent). Id. at 1185-86.
The totality of D.B.’s argument on appeal states that because the history
of the DHS investigation shows that T.F. initially denied in her interview that
she was sexually abused by Appellant, and Investigator Savoy testified that
T.F. presented as truthful during this interview, the trial court erred in
deeming credible T.F.’s second interview in which she said she was now ready
to reveal that D.B. had sexually abused her. To this end, Appellant contends
baldly that DHS influenced this testimony.
With this argument, Appellant asks this Court to do what it cannot do,
which is to upset the evidence-based credibility determinations of the trial
court. Our standard and scope of review in dependency cases is well-settled:
[W]e must accept the facts as found by the trial court unless they
are not supported by the record. Although bound by the facts, we
are not bound by the trial court's inferences, deductions, and
conclusions therefrom; we must exercise our independent
judgment in reviewing the court's determination, as opposed to
its findings of fact, and must order whatever right and justice
dictate. We review for abuse of discretion. Our scope of review,
accordingly, is of the broadest possible nature. It is this Court's
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responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has applied the
appropriate legal principles to that record. Nevertheless, we
accord great weight to the court's fact-finding function because
the court is in the best position to observe and rule on the
credibility of the parties and witnesses.
Interest of K.M., 305 A.3d 116, 121 (Pa. Super. 2023).
The evolution of T.F.’s willingness to accuse D.B. of sexual assault was
addressed first by Investigator Savoy, who indicated that T.F. was afraid to
talk about D.B. that day “but was adamant that she never left her younger
sister alone with D.B.” N.T., 6/29/23, at 46. The second conversation
between Ms. Savoy and T.F. occurred sometime in late July of 2021, within
the first couple week of T.F.’s placement. Instantly, T.F. said she was ready
to talk, that there was more that she wanted to say. N.T. at 57-58. From
there, she detailed several months of sexual abuse, from being shown
pornography, which, T.F. explained, began when D.B. told her that he wanted
to show her about boys. According to Savoy, T.F. described the videos in
detail and said the same was done to her. N.T. at 59. To Savoy, T.F.’s switch
from an initial denial of sexual abuse to her accusation simply reflected that
T.F. Was not willing to talk about the sexual abuse yet. That is why she said
at the second meeting, “Now I’m ready to talk.” N.T. at 70.
The trial court considered this testimony and found,
T.F.’s statements made to the DHS investigator, CUA, and during
her testimony were credible. Despite her failure to initially
disclose the sexual abuse inflicted upon her by D.B., T.F. was
consistent and unwavering in the allegations she made against
him. She was also consistent in credibly describing the physical
abuse she suffered at the hands of [Mother].
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Trial Court Opinion, at 8.
Applying our standard of review, we find no abuse of discretion in the
trial court’s assessment that T.F.’s accusation against D.B. provided clear and
convincing evidence of his child abuse. Accordingly, D.B.’s claim fails.
Order affirmed.
Date: 3/13/2024
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