In the Interest of: M.G., a Minor ( 2017 )


Menu:
  • J-S77031-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: M.G., A MINOR                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    APPEAL OF: J.C.-R., FATHER
    No. 814 MDA 2016
    Appeal from the Order Entered April 26, 2016
    in the Court of Common Pleas of Lancaster County
    Juvenile Division at No.: CP-36-DP-0000181-2015
    IN THE INTEREST OF: J.C., A MINOR                IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    APPEAL OF: J.C.-R., FATHER
    No. 815 MDA 2016
    Appeal from the Order Entered April 26, 2016
    in the Court of Common Pleas of Lancaster County
    Juvenile Division at No.: CP-36-DP-0000180-2015
    BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                          FILED JANUARY 06, 2017
    J.C.-R. (Appellant) appeals from the April 26, 2016 orders of the Court
    of Common Pleas of Lancaster County, Juvenile Division, in case numbers
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S77031-16
    181-2015 and 180-2015.1 In its order at case number 181-2015, the court
    adjudicated M.G. (born in March of 1999) dependent, and made a finding
    that M.G. was the victim of abuse perpetrated by Appellant. In case number
    180-2015, the court adjudicated J.C. (born in August of 2015) not
    dependent, but found aggravated circumstances as to J.C. and against
    Appellant. We affirm the order in case number 181-2015 as to M.G., and
    vacate in part and remand the order in case number 180-2015 as to J.C.
    Lancaster County Children and Youth Social Service Agency (the
    Agency) most recently became involved with the subject family on May 15,
    2015, as a result of the pregnancy of sixteen-year-old M.G. and allegations
    that she was impregnated by her step-father, Appellant. Other reports were
    thereafter received regarding an alleged sexual relationship between M.G.
    and Appellant.      In August of 2015, M.G. gave birth to J.C., of whom, as
    confirmed by genetic testing in November 2015, Appellant is the biological
    father.   M.G. and Appellant denied a sexual relationship, with M.G. first
    claiming that she became pregnant by a peer named “Giggles,” and then
    asserting that she inseminated herself through insertion of a condom used
    by Appellant.
    ____________________________________________
    1
    The orders are dated April 20, 2016, but are time-stamped April 26, 2016.
    We will use the time-stamped date.
    -2-
    J-S77031-16
    The Agency filed petitions for dependency on August 26, 2015.        On
    November 24, 2015, after completion of genetic testing, the Agency filed an
    amended petition requesting a finding of abuse as to M.G., as perpetrated by
    Appellant, as well as a motion for aggravated circumstances as to J.C.,
    against Appellant. Because the trial court aptly summarized the events that
    led the Agency to file these petitions, and related factual history, in its
    opinion entered June 17, 2016, we direct the reader to that opinion for
    further recitation and detail as to the facts of this case.   (See Trial Court
    Opinion, 6/17/16, at 4-12).
    The trial court held hearings on December 3, 2015, January 27, 2016,
    and April 20, 2016.   In support of its petitions, the Agency presented the
    testimony of Sonja Stebbins, Lancaster City Police Lieutenant Detective;
    Ashley Himes, Agency caseworker; M.G.; C.C.-R., M.G.’s mother and J.C.’s
    maternal grandmother; Julie Stover, nurse practitioner, as an expert in
    reproduction; Aubrey Bond, Agency caseworker; and Dr. Robert Filer, as an
    expert in fertility and related endocrinology. In its April 26, 2016 order in
    case number 181-2015, the court adjudicated M.G. dependent, and found
    that she was the victim of abuse perpetrated by Appellant.        By separate
    order entered that day in case number 180-2015, the court adjudicated J.C.
    not dependent, and found that aggravated circumstances existed as to him,
    -3-
    J-S77031-16
    and against Appellant.2        On May 18, 2016, Appellant, through appointed
    counsel, filed timely notices of appeal, along with concise statements of
    errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i), (b). The trial
    court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925(a)(2)(ii). This
    Court consolidated the appeals sua sponte on June 24, 2016.
    On appeal, Appellant raises the following issues for our review:
    A. The [c]ourt erred in finding [Appellant] abused M.G.
    B. The [c]ourt erred in the Order of Adjudication finding aggravated
    circumstances existed as to J.C.[]
    (Appellant’s Brief, at 9).
    Our standard of review for dependency cases is as follows:
    [T]he standard of review in dependency cases requires an
    appellate court to accept the findings of fact and credibility
    determinations of the trial court if they are supported by the
    record, but does not require the appellate court to accept the
    lower court’s inferences or conclusions of law. Accordingly, we
    review for an abuse of discretion.
    In re R.J.T., 
    9 A.3d 1179
    , 1190 (Pa. 2010) (citation omitted).       “The trial
    court is free to believe all, part, or none of the evidence presented, and is
    likewise free to make all credibility determinations and resolve conflicts in
    the evidence.” In re M.G., 
    855 A.2d 68
    , 73-74 (Pa. Super. 2004) (citation
    omitted).
    ____________________________________________
    2
    The trial court additionally issued a third order, a permanency review
    order, on this date, in which it found aggravated circumstances against
    Appellant as to M.G. Appellant, however, does not challenge this order
    and/or raise this issue on appeal. (See Appellant’s Brief, at 9, 14-20).
    -4-
    J-S77031-16
    To adjudicate a child dependent, a trial court must determine, by clear
    and convincing evidence, that the child:
    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[.] . . .
    42 Pa.C.S.A. § 6302.
    In the case sub judice, we have examined the opinion entered by the
    trial court on June 17, 2016 in light of the record in this matter and are
    satisfied that the opinion is a complete and correct analysis regarding the
    finding that M.G. was the victim of abuse and Appellant was the perpetrator.
    We, therefore, adopt the concise, thoughtful, and well-written opinion of the
    trial court as dispositive of this issue. (See Trial Ct. Op., at 13-19).
    We next address the issue of the court’s finding of aggravated
    circumstances as to J.C. Specifically, in finding that J.C. is not dependent,
    the trial court found that, “under such circumstances as existed as of the
    date of its determination, there was not clear and convincing evidence that
    J.C. was a dependent child.” (Trial Ct. Op., at 21). The court then made a
    finding of aggravated circumstances as to J.C.          We are constrained to
    conclude that this was error.
    Pursuant to 42 Pa.C.S.A. § 6341:
    (c) Finding of dependency.─If the court finds from clear and
    convincing evidence that the child is dependent, the court shall
    -5-
    J-S77031-16
    proceed immediately or at a postponed hearing . . . to make a
    proper disposition of the case.
    (c.1) Aggravated circumstances.─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 as required in section 6351(e)(3)
    (relating to disposition of dependent child).
    42 Pa.C.S.A. § 6341(c), (c.1) (emphasis added).3
    In other words, the statute provides that, if the trial court makes a
    finding of dependency, then it shall also determine the existence of
    aggravated circumstances.          See 
    id. Instantly, the
    trial court determined
    ____________________________________________
    3
    “Aggravated circumstances” is defined as “[t]he 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. § 6302. “Sexual violence” is defined as:
    Rape, indecent contact as defined in 18 Pa.C.S.[A.] § 3101
    (relating to definitions), incest or using, causing, permitting,
    persuading or coercing the child to engage in a prohibited sexual
    act as defined in 18 Pa.C.S.[A.] § 6312(a) (relating to sexual
    abuse of children) or a simulation of a prohibited sexual act for
    the purpose of photographing, videotaping, depicting on
    computer or filming involving the child.
    42 Pa.C.S.A. § 6302. We have held that the doctrine of in loco parentis is
    applicable “for purposes of defining ‘parent’ in the context of ‘aggravated
    circumstances[.]’” In re C.B., 
    861 A.2d 287
    , 297 (Pa. Super. 2004), appeal
    denied, 
    871 A.2d 187
    (Pa. 2005).
    -6-
    J-S77031-16
    J.C. was not dependent.     Therefore, its inquiry should have ended there.
    Hence, while we are sympathetic to the trial court’s attempt to protect J.C.
    in the future, its finding of aggravated circumstances as to him was in
    contravention of Pennsylvania law, and is therefore a legal nullity.
    Accordingly, we must vacate the court’s order to the extent it found
    aggravating circumstances as to J.C.
    Consequently, we affirm the order of the Court of Common Pleas of
    Lancaster County, Juvenile Division, finding M.G. to be the victim of abuse
    perpetrated by Appellant, on the basis of the trial court’s opinion. We vacate
    the order of the trial court to the extent it found the existence of aggravated
    circumstances as to J.C., and remand to the trial court for any further
    proceedings.
    Order as to M.G. affirmed.       Order as to J.C. vacated in part and
    remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/6/2017
    -7-
    ,&irçulatgd 12/20/2016 04:13 PM
    i
    1
    k...       i   d
    t
    `G)
    IN,QSHE COURT OF         COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
    JUVENILE DIVISION
    cov THE INTEREST OF                               Term No. CP -36 -DP -180 -2015
    ,. _ n                                           FID: 36 -FN -109 -2015
    and
    IN        HE ?NTEREST OF                         Term No.     CP -36 -DP -181 -2015
    FID:    36 -FN -110 -2015
    OPINION :SUR APPEAL
    This opinion addresses two snparai.e but related appeals
    Ci!   ,   1    by LimilmMMOOMOMMOMOMb (hereinafter, "the Appellant ")                        .
    The first appeal addresses   t:his   Court's Order of
    Adjudication -Child Not Dependent in the case of amomplimz (date
    of birth          August-.    2015; hereinafter,        "J.C.   ")   wherein the Court
    found that aggravated circumstances had been establis'lect                                   ac,   tc
    the Appellant.
    The second appeal addresses this Court's Order of
    Adjudication and Dispositiol          -Chil,..   Dependent in the case of
    411111111M1111116    (date of birth March 11. 1999; hereinafter,                         "M.G.     ")
    Both Orders are dated April 20,          2016.        The Order in the J.C.
    case was entered upon the Clerk of Courts' docket on April 22,
    2016.           The Order in the M.G. case was entered upon the Clerk of
    Court's docket on April 2', 2016.`
    One opinion is beiw; submitted for both appeals for the following
    reasons: the Court found                    to be the perpetrator of sexual
    abuse upon               which was the basis for the finding of aggravated
    circumstances with regard toOMOMMOMMIN     These are the two issues stated in
    the Errors Complained of on Appeal, and the Court's findings as represented in
    May
    The Appellant's Notices of Appeal were timely filed on
    18,    2016.
    In the M.G.   case,   the family within the household consists
    of M.G.'s biological mother,                                    (hereinafter,
    "C.C. -R. "),   her husband (and M.G.'s stepfather)
    (the Appellant),      and her three children:
    Ari, and                      all of whom are the biological children of
    CIMINBW1(hereinafter          "G.G. "), who is C.C. -R.'s former husband
    (but who was and is not a household member).                 (See the Lancaster
    County Children and Youth Social Service Agency's Petition for
    Temporary Custody.)
    In the J.C.   case,   the family consists of J.C.'s bic.ulogical
    mother, M.G.,     J.C.'s biological father         -   the Appellant,   and the
    child, J.C.
    The Appellant,   therefore, is stepfather to M.G. and is the
    biological father of J.C.
    Adjudication /Disposition Hearings were held over the course
    of three days and culminated in the Orders under appeal.
    At all of the hearings,       C.C. -R.   was present and was
    represented by Gina      M.   Carnes, Esquire,         G.G. was present and was
    represented by Catharine        I.   Roland, Esquire,      M.G. was present
    and,    in her role as the mother of J.C.,             M.G. was represented by
    Daniel    H.   Shertzer, Jr., Esquire.        In addition, M.G.'s Guardian
    the two Orders are based upon a single evidentiary record.
    -2-
    ad litem, JoAnne Murphy, Esquire, was present.              The Appellant was
    present and was represented by Caprice Hicks Bunting, Esquire.
    Finally, J.C.'s Guardian ad litem, Jeffrey        S.   Shank, Esquire,      was
    present; the child J.C. was not present due to his young age.
    At all of the hearings in both cases,       David     J.   Natan,
    Esquire,      was present as the solicitor for the Lancaster County
    Children and Youth Social Service Agency        (hereinafter,        "the
    Agency ").
    The three hearings were held on December        3,    2015,   on January
    27,   2016,   and on April 20, 2016.
    In the M.G. case,      the Appellant complains on appeal that
    this Court erred when it ruled that M.G.        is the victim of child
    abuse and that the Appellant is the perpetrator of such abuse.
    In the J.C. case,      the Appellant complains on appeal that
    this Court erred when it made a finding of aggravated
    circumstances      (as   that term is defined in the Juvenile Act)
    against the Appellant.
    The Appellant is the only party to these two cases who has
    sought relief by appeal to the Superior Court.
    -3-
    FINDINGS OF FACT
    1.         M.G. was born on March           2,   1999.      (N.T.   01/27/2016
    at page      5)
    2.         M.G. is the mother of J.C.              (N.T.     01/27/2016 at page    6)
    3.         J.C. was born on August 25,             2015, when M.G.       was sixteen
    years of age.             (N.T.    01/27/2016 at page        6)
    4.         C.C. -R. has been employed as a full -time staff member
    in a medical office from a time prior to when M.G. became
    pregnant and throughout the course of these cases.                            (N.T.
    01/27/2016 at pages 36 -37 and at page                    90)
    5.         The Appellant consistently lived as a part of the same
    household as C.C.           -R.   and M.G.      for a period of about ten years
    prior to the inception of these cases.                       (N.T.    01/27/2016 at page
    41)
    6.         M.G.   had spent every other weekend with her biological
    father, G.G.,            but during the couple of years before these cases
    began M.G. did not visit with G.G.                      (N.T.     01/27/2016 at pages 41-
    42)
    7.         M.G.   refers to G.G. as her "bio dad ", while she refers
    to the Appellant as               "dad"   and the Appellant and C.C. -R.
    collectively as her "parents ".                   (N.T.   01/27/2016 at page 11,        page
    18,   and,    by example, page            8   and page 38)
    -4-
    8.      During the time period when M.G. became pregnant, the
    Appellant was responsible for supervising M.G. when M.G. was at
    home while C.C. -R. was at work.               (N.T.   01/27/2016 at page 41)
    9.      The fact that M.G. was pregnant was confirmed when M.G.
    saw a doctor in February 2015.             (N.T.       01/27/2016 at page 13)
    l0.    After M.G. was seen by        a   doctor in February of 2015 and
    was told that she was pregnant, M.G. told C.C. -R.                  and the
    Appellant that she had been impregnated by                 a   fellow high school
    student.       (N.T.   01/27/2016 at pages 84 -85)
    11.     The Agency received its initial referral in respect to
    M.G.   on May 15,      2015.    (N.T.   12/03/2015 at page 14)
    12.     The referent's allegation was that the Appellant, who
    is M.G.'s stepfather,          is   the biological father of M.G.'s unborn
    child.       (N.T.   12/03/2015 at pages 14 -15)
    13.    On June 30, 2015, the Agency received another referral
    that M.G. was engaging in oral sex with the Appellant.                    However,
    the Agency determined this referral to be unfounded.                    (N.T.
    12/03/2015 at pages 32 -34)
    14.    M.G.'s brother,       1111=11Mgm~          (who had been a household
    member but who had gone to live with his father, G.G., before the
    Agency filed its Petition for Temporary Custody in respect to
    M.G.), was interviewed and reported that he had seen the
    Appellant and M.G. kissing as well as M.G. sleeping in the
    -5-
    Appellant's bed when C.C.        -R.   was sick and sleeping on the couch.
    (N.T.    12/03/15 at page      93)
    15.     Initially,   during a meeting at the family home on May
    15,   2015, M.G.       reported to the Agency caseworker that she got
    pregnant after engaging in sexual intercourse with                    a   fellow high
    school student whom she knew by the name of "Giggles ".                      M.G.   was
    unable to state where she met "Giggles ", what his real name is or
    what he looks like, and she was unable to provide any other
    details about him or about their sexual encounter,                    including the
    location of the party where they had their alleged sexual
    encounter       (or even   whether it was at   a   house or a park) or the
    identity of any of the other persons who were present at the
    party.        (N.T.   12/03/2015 at pages 17 -18)
    16.    The Agency arranged for M.G.        to participate in a
    forensic interview on May 26,           2015, at the Lancaster Children's
    Alliance.        This was the first interview in which M.G.
    participated which was video recorded.              (N.T.     12/03/2015 at page
    21)
    17.     In all, M.G.   participated in three video recorded
    interviews as follows:          at the Lancaster Children's Alliance on
    May 26,       2015; with Detective Lieutenant Sonja Stebbins at the
    Lancaster City Bureau of Police on July             6,   2015; and again at the
    Lancaster Children's Alliance on September               8,   2015.       (N.T.
    -6-
    12/03/2015 at pages        4   -13,    Petitioner's Exhibits           1,   2   and   3   dated
    12/03/2015)
    18.       At the first interview of M.G.            at the Lancaster
    Children's Alliance (on May 26, 2015), M.G. again stated that
    "Giggles"        is the father of her then - unborn child.                  M.G. related
    that she and "Giggles" had engaged in sexual intercourse just
    once    (at   a    party thrown by other high school students), and that
    M.G.'s pregnancy resulted from this, her first and only sexual
    experience for her.             (Petitioner's Exhibit         1   admitted 12/03/2015)
    19.        During the interim between M.G.'s first Lancaster
    Children's Alliance interview (on May 26, 2015) and M.G.'s
    interview with Detective Lieutenant Stebbins                      (on   July     6,    2015),
    the Agency caseworker and the Appellant engaged in several
    conversations in which the Appellant denied the allegations that
    he sexually abused M.G.                (N.T.    12/3/2015 at page 23)
    20.     On or about July         5,     2015,   which was after M.G. had been
    asked to meet for an interview by Lancaster City Bureau of Police
    Detective Lieutenant Stebbins but before such interview occurred,
    C.C. -R.     and the Appellant had a discussion at home where they
    agreed that M.G. must get DNA testing to establish paternity of
    her then unborn child.             (N.T.       1/27/2016 at page 86)
    21.    M.G.    overheard this discussion and reacted by ranting
    and raving for twenty minutes.                   (N.T.   1/27/2016 at pages 86 and
    111)
    -7-
    22.   After M.G. calmed down, M.G. told C.C.                  -R.   and the
    Appellant that she had taken their used condom and inseminated
    herself.      (N.T.   01/27/2016 at page 86)
    23.   M.G.    did not tell her story that she had become
    pregnant via self -insemination with a used condom to anyone other
    than C.C. -R. and the Appellant until she provided that
    explanation during her July                6,   2015,   interview with Detective
    Lieutenant Stebbins at the Lancaster City Bureau of Police.
    (N.T.    12/03/2015 at page 74)
    24.   On July   6,    2015,    during the course of her interview by
    Detective Lieutenant Stebbins at the Lancaster City Bureau of
    Police, M.G.     stated that she had impregnated herself by inserting
    a   condom containing semen into her vagina.                   According to M.G.,
    she overheard her mother and the Appellant having sexual
    intercourse and had retrieved the condom they had used from the
    floor of their bedroom shortly after they finished having sex and
    had left the room.           (N.T.    12/03/2015 at page 23)
    25.   During the July         6,   2015,      interview,   M.G.   told the
    Detective she cut       a    hole in the tip of the condom and then
    squeezed its contents into her vagina.                     (Petitioner's Exhibit      3
    admitted 12/03/2015)
    26.   Thereafter, the Agency implemented a safety plan which
    prohibited the Appellant from having any contact with M.G. or
    with Mother's other children.                   (N.T.   12/03/2015 at page 27)
    -8-
    27.   On August 27,             2015,    which was two days after J.C.'s
    birth, M.G. and J.C. were placed into the physical custody of the
    Agency.      (N.T.      12/03/2015 at page 27)
    28.   M.G. was interviewed by the Lancaster Children's
    Alliance for       a    second time on September               8,   2015.   During that
    interview, M.G. maintained that she was impregnated by way of her
    self - insemination through inserting a used and discarded condom
    into her vagina.           However, M.G.'s precise description of how she
    accomplished this was at variance with the description she gave
    to Detective Lieutenant Stebbins on July 6,                         2015,   as M.G.   now
    claimed that the condom was "halfway open" when she inserted it
    (and made no mention of having cut off the tip and squeezing it).
    (Petitioner's Exhibit             3    admitted 12/03/2015)
    29.   Julie Stover, who is a registered nurse practitioner
    employed by Lancaster General Health and by the Lancaster
    Children's Alliance and who has long experience working with
    children and youth who have been victims of sexual abuse, was
    present during the September                   8,    2015,   interview of M.G. at the
    Lancaster Children's Alliance.                       (N.T.   01/27/2015 at pages 162-
    167)
    30.   Ms.       Stover attempted to glean additional details about
    how M.G. became pregnant from M.G. but M.G.                         shut down and was
    non -responsive.          (N.T.       01/27/2015 at pages 185 -186)
    -9-
    31.        Ms.    Stover was qualified as an expert in the field of
    reproduction.              (N.T.   01/27/2016 at pages 162 -176; Petitioner's
    Exhibit       5    of 01/27/2016)
    32.        Ms.    Stover's opinion was that M.G. could not have
    gotten pregnant in the manner she described with the insertion of
    the discarded condom into her vagina.                        (N.T.   01/27/2015 at page
    185)
    33.        Ms.    Stover's opinion is that M.G. became pregnant as a
    result of child sexual abuse.                  (N.T.    01/27/2015 at page 185)
    34.        On or about November        9,    2015,    genetic testing confirmed
    that the Appellant is the biological father of J.C.
    (Petitioner's Exhibit A attached to the Agency's Amended Petition
    for Custody filed November 24,                 2016).
    35.        At the hearing held on January 27,                2016, M.G.   admitted
    that she had lied during the Children's Alliance interview on May
    26,    2015,       when she stated that the Appellant is not the
    biological father of the Child.                     (N.T.    01/27/2016 at pages    8   -9)
    36.       M.G.    further went on to testify that on the night she
    had inseminated herself she had placed the used condom over her
    index and middle fingers and had then inserted it into her
    vagina.           (N.T.   01/27/2016 at pages 31 -32)
    37.        As of the December      3,    2015,       hearing, M.G. had informed
    the Agency caseworker that she wanted no contact with her
    biological father, G.G.               (N.T.    12/03/2015 at page 46)
    -10-
    38.     M.G. gave J.C. the same name as the Appellant.                (N.T.
    01/27/2016 at page 43)
    39.     M.G. stated that she had decided to have a baby to make
    C.C. -R.          happy because C.C.      -R.    could not have any more children.
    (N.T.       01/27/2016 at pages 46 and             58)
    40.     On January 26, 2016,          the Appellant was charged
    criminally as a result of the inappropriate sexual contact with
    M.G.2         (N.T.       01/27/2016 at page 101)
    41.     On January 27,       2016,    M.G.    testified that she loves the
    Appellant and that she was upset that the Appellant was
    incarcerated.               (N.T.    01/27/2016 at page 70)
    42.        Robert    B.    Filer, M.D.,    was called as a witness on
    behalf of the Agency.                  (N.T.    04/20/2016 at page 37)
    4
    43.        Dr.    Filer was qualified as an expert with regard to
    fertility and related endocrinology.                        (N.T.   04/20/2016 at page
    38)
    44.       Dr.     Filer offered his opinion that assuming a
    hypothetical factual setting which accepts as true the version of
    facts and conditions rendered by M.G.                      which is most likely to
    result in pregnancy,                the best chance of getting pregnant under
    2
    The Court takes judicial notice that Jamie (sic) Cruz -Rivera,
    d.o.b. 10/04/1978, was charged on January 26, 2016, with violations of 18
    Pa.C.S.A. § 3122.1 §§ B Statutory Sexual Assault: 11 Years Older (F1), 18
    Pa.C.S.A. § 6301 §§ (A) (1) (ii) Corruption of Minors - Defendant Age 18 or
    Above (F3), and 18 Pa.C.S.A. § 6318 §§ (A) (1) Unlawful Contact with Minor           -
    Sexual Offenses (F3).   See Docket Number: MJ- 02101 -CR- 0000028 -2016.
    such facts and conditions would be less than one percent.                  (N.T.
    4/20/2016 at page 51)
    45.    The Court asked M.G.     to tell the story of the fateful
    night that she got pregnant in reverse order,              from the end to the
    beginning.      (N.T.   04/20/2016 at pages 60 -61)
    46.    M.G.   was unable to relate any portion of any version of
    her story in reverse order.          (N.T.    04/20/2016 at pages 61 -68).
    47.    M.G. was unable to state a reason why she gave two
    distinct versions of how she applied the used and discarded
    condom to herself       (those being the version in which the condom
    was "halfway open" and was placed over her index and middle
    fingers inside -out and then inserted it and the version where
    M.G.   cut a hole in the tip of the condom,            inserted it and
    squeezed out the contents).          (N.T.    04/20/2016 at pages 68 -69)
    48.    M.G. stated that the correct method of self -
    insemination she utilized was by turning the used condom inside
    out and inserting it in herself.             (N.T.   04/20/2016 at page 69)
    49.   By the time of the final hearing, April 20,           2016,
    Mother indicated she would be filing for divorce from
    Father /Stepfather.       (N.T.   04/20/2016 at page 26)
    CONCLUSIONS OF LAW
    1.    In respect to the case of M.G.,         the record contains
    clear and convincing evidence that M.G. is a victim of child
    -12-
    abuse as defined at 23 Pa. C.S.A.               §   6303 and that the Appellant
    is the      perpetrator of such child abuse upon M.G.3
    2.     In respect to the case of J.C., Aggravated Circumstances
    as defined at 42 Pa.        C.S.A.   §   6302 were established by clear and
    convincing evidence with regard to the Appellant due to the fact
    that a child of the Appellant            (specifically, M.G.)         other than
    J.C.   is the   victim of sexual abuse perpetrated by the Appellant.
    DISCUSSION
    FINDINGS IN RESPECT TO CHILD ABUSE
    AND THE PERPETRATOR OF CHILD ABUSE
    Child abuse is defined in the Child Protective Services Law
    (the               23 Pa.   C.S.A.   §   6303       (b.1),   in relevant part,   as
    follows:
    Child abuse. -The term "child abuse" shall mean
    intentionally, knowingly or recklessly doing any of the
    following:...
    (4) Causing sexual abuse or exploitation of a
    child through any recent act...
    Judicial findings in respect to:                (1)   whether child abuse
    which supports a finding of dependency has occurred; and,                    (2)      if
    child abuse has occurred, the identity of the perpetrator of such
    3     Due to the fact that M.G. had been in placement for a substantial
    period of time, a permanency review was conducted as an integrated part of the
    hearings.  The Court issued a Permanency Review Order dated April 20, 2016,
    and filed April 26, 2016, in which the Court found that aggravated
    circumstances existed as to the Appellant.  The Appellant did not raise any
    issue as to this finding in either of his appeals to the Superior Court.
    -13-
    abuse,      are subject to a "clear and convincing evidence" standard
    of proof.          23   Pa.   C.S.A. 6341    (c);   In Re L.Z.,   
    111 A.3d 1164
      (Pa.
    2015).      Clear and convincing evidence must be established to
    support a finding of Aggravated Circumstances.                     Clear and
    convincing evidence is testimony 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 Re K.M.,   
    53 A.3d 781
    (Pa.Super.
    2012)   .
    A further consideration is the presumption created under 23
    Pa.C.S.A.      §    6381      (d),   which reads, in relevant part, as follows:
    Evidence that a child has suffered child abuse of
    such a nature as would ordinarily not be sustained or
    exist except by reason of the acts...of the parent or
    other person responsible for the welfare of the child
    shall be prima facie evidence of child abuse by the
    parent or other person responsible for the welfare of
    the child.
    In the present case, it is a matter of scientific fact that
    the Appellant is the biological father of J.C.                     M.G.'s pregnancy
    with the Appellant's child, J.C., "would ordinarily not exist
    except by reason of" the Appellant's acts.
    There were no witnesses who testified as to the act which
    led to J.C.'s conception other than M.G.
    The Appellant offered no testimony to rebut the statutory
    presumption which arises from the fact that the child, M.G.,
    -14-
    became pregnant by her much older stepfather, which circumstance
    by necessity falls within the concept of "sexual abuse ".
    M.G. offered numerous inconsistent stories in respect to the
    manner in which she became pregnant.          Her stories were notable
    for an absence of much detail and also for inconsistencies in one
    or more critical details with each of her several iterations.
    Also of significance is that M.G. was unable to respond at all
    when the Court gave her an ample opportunity to tell the true
    story of what happened on the fateful night when she became
    pregnant but to do so by telling the story in a reverse order.'
    M.G.'s estrangement      from her own biological father, G.G.,
    was established through several sources.           The Appellant had the
    opportunity to engage in      a   sexual relationship with M.G., in that
    he was responsible for supervising her while she was at home and
    C.C. -R. was at work.      M.G.   admitted her affection for the
    Appellant.      She gave her child J.C. the same name as the
    Appellant.      She acknowledged her personal distress caused by the
    Appellant's incarceration.        Clearly, M.G. had motives to protect
    the Appellant.      Each of these nuances are individually indicia of
    a potential absence     of candor on M.G.'s part,       or provide reasons
    4
    The undersigned attended the seminar presented at the Pennsylvania
    Conference of State Trial Judges Mid -Annual meeting in February, 2016,
    entitled "Verum or Mendacium" presented by Prof. Dr. Aldert Vrij of the
    University of Portsmouth, Great Britain. Dr. Vrij is a recognized expert in
    the field of lie detection.   One of the points he made is that liars tend to
    omit detail, particularly any detail which is subject to verification, from
    their stories.   Dr. Vrij also suggested that many liars find it difficult to
    relate their stories in reverse order.
    -15-
    for same.     Viewed cumulatively, these nuances point strongly to
    the conclusion that none of varying renditions which M.G. offered
    is credible.     "The trial court is free to believe all, part,          or
    none of the evidence presented and it is likewise free to make
    all credibility determinations and resolve conflicts            in the
    evidence ".    In re M.G.,   
    855 A.2d 68
    ,    73 -74   (Pa.Super. 2004)
    Once this Court has rejected the story that M.G. became
    pregnant by way of self -insemination,        then the obvious manner in
    which she became pregnant is by way her engaging in sexual
    intercourse with the Appellant.
    The expert testimony of Robert B. Filer, M.D., was credible
    and compelling, and is supportive of the Court's ultimate
    conclusion regarding the manner that J.C.'s conception was
    achieved.     Firstly, Dr. Filer's credentials as an expert in human
    reproduction are beyond reproach.          His testimony established that
    there is an infinitesimal chance that M.G. could have been
    impregnated by inserting a used condom containing the Appellant's
    semen.
    The testimony of Julie Stover, R.N.P.,           while not as
    compelling as that of Dr. Filer      (as    her conclusion rests, at
    least in part, upon her best sense of the situation based upon
    her experience with child sexual abuse cases rather than upon the
    science of human reproduction) is none the less supportive of the
    -16-
    conclusion which this Court reached                   -   that J.C. was conceived
    through direct sexual contact between the Appellant and M.G.
    In addition,         there are the reports of physical contact
    between the Appellant and M.G. which are consistent with the
    existence of       a   sexual relationship between them.                 Standing alone,
    these reports would be insufficient proof of that relationship.
    However,       in the context of the other cumulative                  evidence, they
    bolster the Court's conclusion that such                     a    relationship did
    exist.
    Under the CPSL at 23 Pa.C.S.A.                   §   6303,   the following is
    included, inter alia,             within the definition of "sexual abuse or
    exploitation ":
    ...(ii)      Statutory sexual assault as defined in 18 Pa.C.S.                     §
    3122.1;...and,
    ...(xii)      Unlawful contact with a minor as defined in 18
    Pa.C.S.    §   6318.
    18    Pa.C.S.     §   3122.1       (b)   states that "[a] person commits a
    felony of the first degree when that person engages in sexual
    intercourse with a complainant under the age of 16 years and that
    person is 11 or more years older than the complainant and the
    complainant and the person are not married to each other."                           Each
    of the elements of this offense are present in the instant case.
    18 Pa.C.S.        §   6318   (a)     states, in relevant part,        that:
    -17-
    "A person commits an offense if he is            intentionally in
    contact with a minor...for the purpose of engaging in an activity
    prohibited under any of the following, and either the person
    initiating the contact or the person being contacted is within
    this Commonwealth:       (1)   Any of the offenses enumerated in Chapter
    31   (relating to sexual offenses)..."             Again, each of the elements
    of this offense are present in the instant case.
    Even in a criminal matter where proof beyond a reasonable
    doubt is the evidentiary standard, it is well established that
    the standard may be satisfied where only circumstantial evidence
    is offered.     "The Commonwealth may sustain its burden of proving
    every element of the crime beyond a reasonable doubt by means of
    wholly circumstantial evidence."             Commonwealth v. Andrulewicz,
    
    911 A.2d 162
    ,    165   (Pa.Super.    2006)   ,   citing Commonwealth v.
    DiStefano,    
    782 A.2d 574
    ,    582   (Pa.Super 2004).       For further
    exposition of the concept,       the Court reviewed the Pennsylvania
    Suggested Standard Criminal Jury Instructions and found the
    following:
    Circumstantial evidence alone may be sufficient to
    prove the defendant's guilt.   If there are several
    separate pieces of circumstantial evidence, it is not
    necessary that each piece standing alone separately
    convince you of the defendant's guilt beyond a
    reasonable doubt.   Instead, before you may find the
    defendant guilty, all the pieces of circumstantial
    evidence, when considered together, must reasonably and
    naturally lead to the conclusion that the defendant is
    guilty and must convince you of the defendant's guilt
    beyond a reasonable doubt.   In other words, you may
    find the defendant guilty based on circumstantial
    -18-
    evidence alone, but only if the total amount and
    quality of that evidence convince you of the
    defendant's guilt beyond a reasonable doubt.  Pa. SSJI
    (Crim) 7.02A 4.
    In the present case,   there is the direct scientific evidence
    that the Appellant is the biological father of J.C.             There is Dr.
    Filer's expert opinion that it is highly unlikely conception
    could have occurred through any of the methods described by M.G.
    The balance of the evidence is circumstantial in nature.
    In reviewing the totality of the evidence against the highly
    stringent standard of proof beyond a reasonable doubt,            this Court
    is satisfied that the evidence is sufficient to meet that test
    and is more than sufficient      to far exceed that degree of proof
    necessary to meet the "clear and convincing evidence" standard
    which is applicable in this case.'
    FINDING OF AGGRAVATED CIRCUMSTANCES
    The Court found that "aggravated circumstances" had been
    proven as to the Appellant due to its finding that the Appellant
    had sexually abused M.G.
    The relevant definition of "aggravated circumstances"
    applicable to the instant matter is... "(2)         ...another child of
    5
    After the record was closed in these proceedings, according to the
    Agency's brief in the appeal, M.G. has admitted that she and the Appellant had
    a sexual relationship.  The Answer To Statement Of Matters Complained Of On
    Appeal filed on behalf of C.C. -R. indicates the same.
    -19-
    the parent has been the victim of...sexual violence...by the
    parent ".     23    Pa.       C.S.A.   §    6302.   (Irrelevant material omitted.)
    The Appellant is not the biological father of M.G., but he
    is her stepfather.               The Superior Court has established that for
    the purpose of defining the term "parent"                      in the context of
    aggravated circumstances,                   the doctrine of in loco parentis may be
    appropriately applied.                 In    the Interest of C.B.       and A.L.,     
    861 A.2d 287
    (Pa.Super. 2004).                    The Appellant stood in the
    relationship of            a   parent to M.G. by assuming the obligations
    incident to the parental relationship.                        In the case of J.C., M.G.
    is    "another child of the parent"                    (the Appellant)   who "has been
    the victim of sexual violence by the parent."
    Clear and convincing evidence must be established to support
    a finding of        Aggravated Circumstances.                42 Pa.C.S.A.    8   6341
    (c.1).     Again,    "clear and convincing evidence"                is testimony 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 Re K.M.,    
    53 A.3d 781
       (Pa.Super.     2012).
    The same evidence which supports the Court's findings in
    respect to child abuse more than amply supports its finding that
    aggravated circumstances exist in respect to the actions of the
    Appellant vis -à -vis M.G.               The analysis of the evidence set forth
    in the first part of the discussion above                      (regarding the Court's
    -20-
    findings in respect to child abuse)         is applicable in this
    instance as well.
    The Appellant may argue that it is improper for this Court
    to make a finding of aggravated circumstances in the context of
    an adjudication order where the subject child is found to not be
    dependent, as occurred here.       It is axiomatic that the finding of
    dependency,     or the lack thereof, must be based upon the facts and
    circumstances as they exist when a court makes its ruling on the
    issue.     As of the date of the final hearing in this case          (April
    20,   2016),   the circumstances had evolved significantly from those
    which existed as of the time the Agency brought its petition.
    The Appellant had been incarcerated.          C.C. -R. had indicated her
    intention to divorce the Appellant.          J.C. had been in M.G.'s care
    since his birth, and there was every indication that he would be
    safe if he were to remain in her care.          The Agency, while arguing
    that both M.G. and J.C. were dependent, was supportive of its
    retaining only legal custody of M.G., with her physical custody
    to be returned to C.C. -R.    and with J.C. to remain with M.G.
    (N.T.    04/20/2016 at pages 75 -79)      M.G.'s counsel argued
    persuasively that M.G. herself was         a ready,   willing and able
    parent    (albeit with the supports in place for her in her mother
    C.C. -R.'s home).    The Court found that, under such circumstances
    as existed as of the date of its determination,          there was not
    clear and convincing evidence that J.C. was a dependent child and
    -21--
    issued its Order so finding, but the Court also made its finding
    that clear and convincing evidence,        as noted above,   existed which
    established aggravated circumstances as to the Appellant.
    It   may be argued that the Court's finding of aggravated
    circumstances is      a   nullity where there is no finding that a child
    is dependent.       It may be   further argued that without an ongoing
    case,    a   finding of aggravated circumstances accompanied by a
    finding that the Agency need not offer a plan for reunification
    serves no practical purpose.
    In the ordinary course of events,     a court will address the
    issue of aggravated circumstances subsequently to making its
    finding that a child is dependent.         See In the Interest of R.P.,
    
    957 A.2d 1205
         (Pa.Super. 2008).
    The Court has attempted to find appellate authority on the
    issue of whether a court may make a finding of aggravated
    circumstances where there is no finding in the same case that           a
    child is dependent, but has been without success.
    The Court is aware of the provision in 42 Pa.C.S.A.      §   6341
    (c.1)    which provides that:
    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
    -22-
    hearing as required in section 6351(e)(3) (relating to
    disposition of dependent child). (Emphasis supplied.)
    The legislature's choice of the word "shall"      indicates that
    it    is   mandatory for   a   court to rule on the issue of whether
    aggravated circumstances exist where a child has been determined
    to be dependent and motion for the finding has been made.               A
    finding of aggravated circumstances is a legal conclusion drawn
    by a court having jurisdiction and is based upon the facts as
    found by the court.         The Juvenile Act defines what constitutes
    aggravated circumstances and states when a court is compelled to
    make a legal determination upon the issue.             The Juvenile Act does
    not exclude the finding of aggravated circumstances by a court
    where,       as in the instant case,      the issue has been fully and
    fairly litigated and there is a factual basis proven by clear and
    convincing evidence which supports a finding of aggravated
    circumstances.        Rather,    a   court should be permitted to make the
    finding where, as here, the court is not mandated to make the
    determination by the strict terms of the statute but the finding
    is nonetheless appropriate and in the interest of the subject
    child and of justice.
    The Court is highly mindful of its responsibility to enter
    an order of "disposition best suited to the protection and
    physical, mental and moral welfare of the child."             24 Pa.C.S.A.   §
    6351    (a).    Under the circumstances,       the Court has concern that in
    the absence of a finding of aggravated circumstances,           the
    -23-
    Appellant's chances of his eventually reuniting with J.C. will be
    enhanced.     That eventuality would be contrary to the protection
    and physical, mental and moral welfare of J.C.      A finding of
    aggravated circumstances carries with it collateral consequences
    which the Court believes are appropriate in this case and which
    the Appellant should not escape only because J.C.         is now in a
    safe place with M.G.    Those consequences may include, but are not
    limited to,   forming an appropriate consideration for a court in
    the future should it be faced with the issue of whether to grant
    the Appellant a plan for reunification.      The finding may also be
    a   significant part of a court's consideration of the safety of a
    child in a child custody case where the Appellant is a party or
    is a household member of a party.      See 23 Pa.C.S.A.    §   5329.1.   As
    such,   there is ample legal basis and good reason to sustain this
    Court's finding of aggravated circumstances.
    -24-
    CONCLUSION
    The Appellant's appeals are without merit.                                  The Order of
    Adjudication and Disposition -Child Dependent with regard to
    Monica Geib dated April 20, 2016, and the Order of
    Adjudication -
    Child not Dependent with regard to Jaime Cruz dated April
    20,
    2016,         should be affirmed.
    ,.   _.        ..    ...   .
    ....
    i   C?rtify this document to be filed                                       BY THE COURT:
    in ::he Lancaster County Office
    ,
    of
    the » ;eri` of the Courts.
    iliMalTarM
    )
    %
    Wi eich,      Judge
    ``?.,
    ,"
    7.72 " CJ
    7
    ¡,    -AL,...,
    ..,
    //    L-
    7JaJcµ.,Eryn P.CF4sÍCh
    Clerk of Courts
    Copies to:
    David J. Natan, Esquire, Counsel for Children and Youth
    Agency
    Gina M. Carnes, Esquire, Counsel for C.C. -R.
    Catharine I. Roland, Jr., Esquire, Counsel for G.G.
    JoAnne Murphy, Esquire, Guardian ad litem for M.G.
    Daniel S. Shertzer, Jr., Esquire, Counsel for M.G.
    Caprice Hicks Bunting, Esquire, Counsel for the
    Appellant
    Jeffrey S. Shank, Esquire, Guardian ad litem for J.C.
    -25-
    

Document Info

Docket Number: 814 MDA 2016

Filed Date: 1/6/2017

Precedential Status: Precedential

Modified Date: 4/17/2021