Can a parent be considered a perpetrator of abuse when there is another identified direct perpetrator of sexual abuse?
In the Interest of: N.B.-A., 2019 WL 1985543 (Pa. Super. 2019), allocatur granted May 6, 2019, appeal docket 11 EAP 2019.
In 2016, when N.B.-A was six, a positive test for a sexually transmitted disease resulted in an investigation by the Department of Human Services (“DHS”) against E.A. (“Mother”). In 2018, the juvenile court entered an aggravated circumstances order against Mother that found she was a perpetrator of child abuse, even though her adult stepson, who fled the country after investigation began, had been identified as the actual perpetrator of sexual abuse. On appeal, Superior Court affirmed, reasoning first that the standard of proof was met in the juvenile court through Mother’s testimony and lack of credibility (dealing with whether Mother intentionally, knowingly, or recklessly caused or created likelihood of abuse through a recent act or failure to act):
Based on the foregoing testimony adduced at the hearing, we conclude that the juvenile court did not abuse its discretion in concluding that Mother was a perpetrator of child abuse regardless of the fact that her stepson had been identified as the actual perpetrator of sexual abuse. It is undisputed that N.B.-A. was assaulted sexually. Mother acknowledged that she was N.B.-A.’s primary caregiver, and denied that either Stepfather or his sons cared for N.B.-A. While Mother disclaimed any knowledge that N.B.-A. suffered sexual abuse, the juvenile court determined that she lacked credibility. Indeed, Mother’s own testimony establishes that when she first learned that the six-year-old N.B.-A. contracted chlamydia, she passed it off as a birth-related malady and was untruthful about whether any males lived in her house. In sum, Mother was indifferent to the fact that her daughter contracted a sexually transmitted disease, and she chose to disregard the obvious indicia of abuse.
Slip Op. at 12-13.
Further, the Superior Court applied 23 Pa.C.S. § 6381(d) to affirm the juvenile court’s finding, reasoning that DHS established a prima facie case that Mother was responsible for abuse perpetrated against N.B.-A., and that Mother failed to rebut the presumption that she was a perpetrator of child abuse:
The totality of this evidence adduced by DHS supports the juvenile court’s conclusion that Mother was a perpetrator of child abuse. In addition to the evidence that established that Mother’s inattentiveness to her daughter around the adult stepbrother knowingly or recklessly created a likelihood of sexual abuse, the certified record demonstrates that N.B.-A. suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of Mother. Hence, through the foregoing evidence of record, DHS established a prima facie case pursuant to 23 Pa.C.S. § 6381, that Mother was a perpetrator of child abuse, and Mother failed to rebut that presumption of abuse. Accordingly, we do not disturb the juvenile court’s finding of child abuse as perpetrated by Mother.
Slip Op. at 13-14.
The Supreme Court has granted allocatur to address the following issues, as stated by petitioner:
(a) Did the Superior Court err by affirming the trial court’s finding that Mother was a perpetrator of child abuse in the absence of clear and convincing evidence that she intentionally, knowingly, or recklessly caused or created a likelihood of sexual abuse through a recent act or failure to act?
(b) Did the Superior Court commit an error of law by applying 23 Pa.C.S. § 6381(d) to find that DHS established a prima facie case that Mother was responsible for the abuse perpetrated against N.B.-A. where another individual had been identified as the direct perpetrator?; and
(c) Did the Superior Court commit an abuse of discretion by finding that Mother failed to rebut the prima facie presumption that she was a perpetrator of child abuse pursuant to 23 Pa.C.S. § 6381(d)?