In the Int. of: La.-Ra. W., Appeal of: C.W. ( 2021 )

J-S23002-21 & J-S23003-21
2021 PA Super 227IN THE INTEREST OF: LA.-RA. W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.W., FATHER :
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: No. 354 EDA 2021
Appeal from the Order Entered January 27, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001437-2019
IN THE INTEREST OF: LY.-RO. W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: C.W., FATHER :
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: No. 359 EDA 2021
Appeal from the Order Entered January 27, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001438-2019
IN THE INTEREST OF: LA.-RA. W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.P., MOTHER :
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: No. 478 EDA 2021
Appeal from the Order Entered January 27, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001437-2019
J-S23002-21 & J-S23003-21
IN THE INTEREST OF: LY. -RO. W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: S.P., MOTHER :
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: No. 479 EDA 2021
Appeal from the Order Entered January 27, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001438-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
OPINION BY LAZARUS, J.: FILED NOVEMBER 22, 2021
C.W. (Father) and S.P. (Mother) (collectively, Parents) appeal1 from the
trial court’s adjudicatory and dispositional orders finding that Parents’ 2 then-
eight-week-old twin children, Ly. -Ro. W. and La.-Ra. W. (collectively,
Children) (born 6/2019), were dependent3 and the victims of child abuse.
After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 We have sua sponte consolidated Mother’s and Father’s appeals. See
Pa.R.A.P. 513.
2 On March 10, 2021, the trial court consolidated Father’s appeals for each
twin sua sponte.
3 In In re R.J.T., 9 A.3d 1179 (Pa. 2010), the Supreme Court set forth the
proper standard of review in dependency cases as follows:
[T]he proper standard of review in dependency cases is whether
the trial court abused its discretion, noting that the appellate court
(Footnote Continued Next Page)
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Children were born, full-term,4 in June 2019; each twin weighed over 5
pounds at birth. On August 7, 2019, the Department of Human Services
(DHS) received a Child Protective Services (CPS) investigation report5
indicating that Parents had taken La. -Ra. W. (Child) to the Children’s Hospital
of Philadelphia (CHOP) after Mother noticed swelling in Child’s right thigh the
day before and also observed that Child had been fussy during diaper changes
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must accept the facts as found by the trial court, unless they are
not supported by the record, but that the court is not bound by
the court’s inferences or legal conclusions.
Id. at 1185 (citations omitted).
4A pediatric doctor testified that the twins were full-term, having been born
past 37 weeks’ gestation. N.T. Dependency/Abuse Hearing, 9/23/20, at 72.
5 The report, which was deemed “indicated,” listed the outcome of its
investigation as follows:
CPS allegations indicated. Both parents have denied allegations
of physical abuse[;] however, Child age[d two-]months old was
found to have [two] fractured femurs and [P]arents have been
unable to provide any explanations of how injury occurred.
Following medical evaluation and tests, [C]hild was found to have
no pre-existing medical conditions that may have caused injuries
and [P]arents have denied that [C]hild has had any recent
accidents, falls, or other accidental traumas. Following [magnetic
resonance imaging, or] MRI, Child was also found to have a
subdural hematoma (bleeding in space between brain and skull).
Medical reports indicate that [C]hild’s injuries are consistent with
non-accidental trauma/[]child physical abuse. Parents report that
they have been the primary caregivers of both [C]hild and [her]
twin since birth.
CPS Investigation Report, 8/7/19, at 2.
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for the prior two to three days.6 N.T. Dependency/Abuse Hearing, 1/27/21,
at 172, 175. Following an x-ray and magnetic resonance imaging (MRI), Child
was diagnosed with a right femur fracture (with some signs of healing) and a
bilateral, thin subdural hematoma. CHOP doctors also conducted a sibling
evaluation for Child’s twin, Ly. -Ro. W., that revealed no signs of trauma or
fractures. Id., 9/23/20, at 49.
DHS social workers met with Parents twice at CHOP; Parents
consistently denied knowledge of Child having had any accidental trauma,
including falls, drops or bumps. Id. at 34. Mother stated that she laid La. –
Ra. down for a nap around 1:00 PM and that La. -Ra. woke up at 3:30 PM.
When La. -Ra. awoke Mother noticed swelling on Child’s right leg. Parents are
Children’s primary caregivers; at the time Children were injured, Father
worked full-time for United Parcel Service (UPS) and Mother was a stay-at-
home mom.7 Id. at 34; Id., 1/27/21, at 170-71. Parents and Children reside
with paternal great-grandfather and paternal aunt. Paternal great-
grandfather does not look after Children; paternal aunt “sometimes look[s]
after [] Children while [Mother] takes a shower or for a few minutes at a
time[,] but did not provide care for [] Children.” Trial Court Opinion, 4/22/21,
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6 Father testified that Child would normally cry a little when he changed her
diaper or when he would put her in a onesie. He also testified that Child’s
twin, Ly.-Ro. W., would not cry during diaper changes.
7At the January 27, 2021 hearing, Children’s CUA caseworker testified that
Mother was employed by Amazon and Father was working at a pizza shop.
N.T. Dependency/Abuse Hearing, 1/27/21, at 16.
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at 4; N.T. Abuse/Dependency Hearing, 1/27/21 at 171-72. Children had no
babysitters.8 N.T. Dependency/Abuse Hearing, 1/27/21, at 134-35, 171.
After reviewing x-rays and consulting with the Child Protection Team at
CHOP, Dr. Colleen Bennett, the CHOP Attending Physician in Child Abuse
Pediatrics and a qualified expert in child abuse, opined that Child’s femur
fracture was the result of significant force being applied to Child’s leg (known
as an “oblique” fracture), most likely in a twisting motion. Both bone health
tests9 and genetics testing were conducted; all test results were negative.
Doctor Bennett ruled out that the fracture was a birth injury, self-inflicted
injury, or the result of a genetic condition. Id., 9/23/20, at 31, 33-34, 36,
43. The expert concluded that the fracture, which she deemed significant,
“had some signs of healing[,]” which typically occurs in injuries sustained
seven days to two weeks prior. Id. at 32. Moreover, Dr. Bennett opined that
the fracture was not the type of injury that occurs when a baby puts his or
her legs outside of a crib because they are not able to roll or move in the crib
at eight-weeks-old. Id. at 34-36.
Similarly, Dr. Bennett opined, after reviewing x-rays and a brain MRI,
that Child’s hematoma was most likely not a result of birth trauma, a metabolic
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8 Mother did testify that Children were with their Godfather on July 4, 2019,
for approximately three hours and in the care of paternal aunt on August 1,
2019, for an hour or two. N.T. Dependency/Abuse Hearing, 1/27/21, at 171.
9 These tests checked Child’s calcium, vitamin D, magnesium, and phosphorus
levels; all levels were normal. Doctor Bennett also testified that doctors
considered rickets and a vitamin D deficiency for both twins, but there was no
finding on x-rays for the conditions.
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disorder, or a self-inflicted injury, id. at 39-40, 43, but was most likely caused
by violent force as a result of the head moving back and forth. Id. at 41.
CHOP doctors also did a blood workup to evaluate the cause of the bleeding
and to check for rare bleedings disorders; the workup was negative. Id. at
38-40. CHOP experts concluded that Child’s injuries were non-accidental
trauma, indicative of child abuse.10 Id. at 42. CYS’ investigation report,
deemed “indicated,” identified Child as a victim of child abuse based upon
medical evidence, and Parents as the “alleged perpetrators/responsible
person[s].” CYS Investigation Report, 8/7/21, at 2. Accordingly, Children
were discharged to maternal aunt’s care with a safety plan in place.
On August 21, 2019, a follow-up skeletal survey revealed that Child’s
twin, Ly. -Ro. W., had a healing posterior fracture to her sixth rib on the left
side.11 Id. at 45, 50. This injury was similarly unexplained12 and “highly
concerning for non-accidental trauma or physical abuse.” Trial Court Opinion,
4/2/21, at 6; see also N.T. Dependency/Abuse Hearing, 9/23/20, at 48, 58;
id., 1/27/21, at 139-40. Doctor Bennett testified that posterior rib fractures
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10 The CYS Investigation Report specifically listed the “category of
abuse/neglect” as “causing bodily injury to child through recent act/failure to
act.” CYS Investigation Report, 8/7/19, at 2.
11 CHOP doctors were unable to determine when this rib fracture occurred.
12 Doctor Bennett testified that Ly. -Ro. W’s rib fracture could have been
present during the initial skeletal survey conducted on August 7, 2019, as it
is not uncommon to find additional injuries or clarifying initial injuries on
follow-up exams.
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are rarely accidental and are highly specific for abuse; she also indicated that
CHOP doctors had ruled out any metabolic bone conditions as the reason for
this particular fracture. Id., 9/23/20, at 50, 54-55. Finally, Doctor Bennett
testified that there are often no external signs of trauma (i.e., bruising or
swelling) with rib fractures. Id.
An August 21, 2019 repeat skeletal survey for Child revealed a second
fracture—this time to the left femur—that was healing. Id. at 45; id.,
1/27/21, at 132.13 Parents again denied any knowledge of how these injuries
occurred to Children and also denied any history of drug or alcohol use or any
mental health concerns. Id. at 185. CYS prepared another report, dated
August 21, 2019, listing Ly.-Ro. W. as a victim of child abuse and Parents as
the abusers; the information in the report listed Parents as the alleged
“perpetrators/responsible persons.”14 The report was deemed “indicated.”
The Community Umbrella Agency (CUA) gave Parents the following objectives:
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13 Doctor Bennett also testified that “from the follow-up survey[,] . . . in
retrospect there w[ere] likely some signs of healing of the left femur at the
time of the initial skeletal survey. So it was likely present at th[e] time [of
the initial survey,] but subtle[,] and became more obvious on the follow[-]up
skeletal survey.” Id. at 45-46.
14 Unlike CYS’ prior report, dated August 7, 2019, its August 21, 2019 report
states “unknown” with regard to a third alleged perpetrator [(AP)]/responsible
person, noting that “AP’s have been identified. Unfounded unknown AP.” CYS
Investigation Report, 9/21/19, at 1-2. The August 21st report lists a sibling
and legal guardian as other members of Children’s household. Id. The report
also notes that “Per re-evaluation from 9/6/19, both MOT[HER] and FAT[HER]
have been added as perpetrators and both have been indicated.” Id.
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parenting classes, one-hour supervised visits15 with Children at CUA, and
weekly meetings with a CUA worker. Id. at 183-84. Parents consistently
attended supervised visits with Children and completed parenting classes.
Children remained in kinship care.
On September 9, 2019, DHS filed dependency petitions for Children
alleging that it “has determined that there is [a] sufficient basis to find that
aggravating circumstances exist [in the matter] pursuant to 42 Pa.C.S. § 6302
(aggravating circumstances (2)),” where Children “have been [] victim[s] of
physical abuse resulting in serious bodily injury by [Parents].” DHS
Dependency Petitions, 9/9/19, at ¶¶ 5(l)-(m). An adjudicatory hearing was
scheduled for September 18, 2014; when Parents contested the hearing, the
hearing was deferred. On September 23, 2020, the court held the first of two
bifurcated adjudicatory/child abuse hearings. At the first hearing, Dr.
Bennett, Dr. Marvin Miller, Greg Williams, Dr. Susan Nagal-Gootnick (Dr.
Gootnick),16 Mother, and Father testified.
Doctor Bennett, a CHOP attending physician in child abuse pediatrics
who was one of Child’s consulting physicians in the CHOP emergency
department on August 6th, testified as DHS’s expert witness. Doctor Miller, a
pediatrician at Dayton Children’s Hospital, testified as an expert on behalf of
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15 In October 2019, Mother violated the court’s visitation order when she
attended a family gathering where Children were present. See N.T.
Dependency/Abuse Hearing, 9/23/20, at 341-42.
16 The parties and briefs refer to Dr. Nagal-Gootnick as Dr. Gootnick, so we
will refer to her by the latter name throughout this decision.
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Mother.17 However, the trial court ultimately struck Dr. Miller’s testimony as
inadmissible in response to DHS’s Frye18 motion, concluding that Dr. Miller’s
theory of Temporary Brittle Bone Disease (TBBD) (also known as metabolic
bone disease of infancy (MBDI)), which he proposed was the mechanism of
injury to Children, is a legitimately disputed theory that is not generally
accepted in the medical community. Greg Williams, Children’s assigned CUA
case manager, who testified on behalf of DHS with regard to Children’s
placement and safety, noted that Children are thriving in kinship care with a
family friend. N.T. Dependency/Abuse Hearing, 9/23/20, at 339. Doctor
Gootnick, a board-certified radiologist and expert in pediatric radiology,
testified for Mother. However, the trial court ultimately struck Dr. Gootnick’s
testimony, exhibits, and April 15, 2020 expert report. The court concluded
that Dr. Gootnick’s expert report was modified without her knowledge and,
thus, it “goes to the very heart of her credibility and the very heart of the
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17The court was unable to determine exactly in what area Dr. Miller was an
expert. All parties agreed that he was qualified as a geneticist. N.T.
Dependency/Abuse Hearing, 9/23/20, at 203, 207. However, DHS claimed
that the doctor was not an expert in pediatric radiology.
18Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Frye set forth the
requirement that in order for an expert’s testimony to be admissible, his or
her methodology must be generally accepted in the relevant field. See also
Pa.R.E. 702. Frye was adopted in Pennsylvania in Commonwealth v. Topa,
369 A.2d 1277 (Pa. 1977). Later, in Grady v. Frito-Lay, Inc., 839 A.2d 1038(Pa. 2003), the Pennsylvania Supreme Court clarified that the Frye rule
“applies to an expert’s method, not his [or her] conclusions.” Id. at 1047.
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credibility of the documents offered to this [c]ourt.” Trial Court Opinion,
4/22/21, at 31.
On October 23, 2020, mid-trial, and at the direction of the trial judge at
the September 23rd hearing, DHS filed a motion to exclude Drs. Miller’s and
Gootnick’s expert testimony based on Frye. In its motion, DHS argued that
Dr. Miller failed to opine, to a reasonable degree of medical certainty, as is
required under Pennsylvania law. See Frye Motion, 10/23/20, at 7; see also
Pa.R.E. 70219 (controlling admissibility of expert testimony). DHS also
contended that Dr. Miller’s theory of MBDI has been rejected by numerous
courts, that too much of an analytical gap existed between his data and
medical conclusions, that MBDI is not generally accepted in the medical
community and is not included in medical textbooks, and prominent medical
associations and peer-reviewed publications have rejected his theory. See
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19 Rule 702 states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in
the relevant field.
Pa.R.E. 702 (emphasis added). Rule 702(c) embodies the Frye rule.
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Frye Motion, supra at 8-10. Finally, in a footnote in its motion, DHS sought
to preclude Dr. Gootnick’s report where she “review[ed] and reli[ed] on Dr.
Miller’s reports when assessing Children’s injuries and ultimately arriving at
her opinion.” Id. at 7 n.3.
On January 27, 2021,20 at the second dependency/child abuse hearing,
DHS caseworker Sherene Cryor, Mr. Williams,21 Dr. Bennett, Dr. Gootnick,
Mother, and Father testified. Following the second hearing, the Children were
adjudicated dependent; the court found that Children were” “without proper
parental care or control, subsistence, education as required by law, or other
care or control necessary for [their] physical, mental, or emotional health or
morals.” See 42 Pa.C.S. § 6302. Based on medical expert testimony adduced
at the hearings, the court also determined that the Children were victims of
child abuse, see 23 Pa.C.S. § 6303(b.1), and that, based on founded reports,
clear and convincing evidence established that Parents were the abusers. The
trial judge specifically discredited Parents’ testimony about whether pressure
during diaper changes could cause femur fractures, stating that “it appeared
clearly that they were fed that line as part of an attempt to explain away the
mechanism of the injury of the children.” N.T. Dependency/Abuse Hearing,
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20 On November 18, 2020, the court scheduled the second of the two
bifurcated hearings for January 27, 2021.
21Mr. Williams testified that while kinship care was going well, foster parent
had submitted her 30-day notice of her intention to terminate the placement
and the CUA was in the process of locating another placement for Children.
N.T. Dependency/Abuse Hearing, 1/27/21, at 13.
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1/27/21, at 212. Finally, the court emphasized that despite the finding of
abuse with regard to Parents, “the goal is still a reunification.” Id. at 211. To
that end, the court advised that the CUA and/or Child Advocate look at
parenting resources for Parents and also ordered visits with Children be
supervised by their kinship caregiver. Id. at 214-15. Custody of Children
was transferred to DHS.
Father filed a timely notice of appeal from the trial court’s final order,
as well as a court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On appeal, Father presents the following issues for
our review:
(1) Whether the trial court erred as a matter of law or abused
its discretion when it determined that [Children] were the
victims of child abuse, and that [Father] was responsible for
that abuse.
(2) Whether the trial court erred as a matter of law or abused
its discretion when it ruled the expert testimony of Dr.
Marvin Miller and Dr. Susan Gootnick inadmissible.
(3) Whether the trial court erred as a matter of law where it
determined that [] Children met the definition of dependent
children.
(4) Whether the trial court erred as a matter of law and abused
its discretion when it ordered that it was clearly necessary
to remove [] Children from [P]arents’ care.
Father’s Brief, at 3. Mother presents the following issues for our
consideration:
(1) Did the trial court err as a matter of law and abuse its
discretion when it made a finding of child abuse under
the Child Protective Services Law ([]CPSL[]) and that []
Mother was responsible for such abuse[?]
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(2) Did the trial court err as a matter of law and abuse its
discretion by making a finding of child abuse against
[Mother] under the CPSL, where DHS failed to establish
by clear and convincing evidence that the Child’s injury
was [the result of] child abuse, as defined by 23 Pa.C.S.
§ 6303(b.1)[?]
(3) Did the trial court err as a matter of law and abuse its
discretion by making a finding of child abuse against
[Mother] under the CPSL, where [DHS] failed to
establish by clear and convincing evidence that [Mother]
acted intentionally, knowingly, or recklessly or that
[Mother] caused any harm or created a risk of harm to
[] Children, as required by 23 Pa.C.S. § 6303(b.1)[?]
(4) Did the trial court err as a matter of law and abuse its
discretion when it ruled the expert testimony of Dr.
Marvin Miller and Dr. Susan Gootnick inadmissible[?]
(5) Did the trial court err as a matter of law and abuse its
discretion when it adjudicated [] Children dependent
under the Juvenile Act, 42 Pa.C.S. § 6302, where the
evidence was that Mother was fully engaged with her
[s]ingle [c]ase [p]lan goals for over a year, was fully
compliant with visits and medical appointments for []
Children, was well-bonded to [] Children and
appropriate with Children on supervised visits, and
where the only evidence [] Children were without proper
parental care and control was alleged physical abuse
occurring more than [one] year prior[?]
(6) Did the trial court err as a matter of law and abuse its
discretion when it entered a finding that it was “clearly
necessary” for [] Children to be removed from the care
of [Mother], where the evidence was that Mother was
fully engaged with her [s]ingle [c]ase [p]lan goals for
over a year, was fully compliant with visits and medical
appointments for [] Children, and was well-bonded to []
Children and appropriate with [] Children during
supervised visits[?]
(7) Did the trial court commit an error of law and abuse of
discretion when it entered a finding that DHS made
reasonable efforts to prevent or eliminate the need for
removal of [] Children from Mother’s care[?]
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Mother’s Brief, at 8-9 (renumbered for ease of disposition).
Father and Mother first claim that the trial court abused its discretion
and erred as a matter of law when it made a finding of child abuse and
concluded that Parents were responsible for such abuse.
When a court’s adjudication of dependency is premised upon physical
abuse, its finding of abuse must be supported by clear and convincing
evidence. In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993).
Clear and convincing evidence exists when testimony given is so “clear, direct,
weighty, and convincing as to enable the trier of fact to come to a clear
conviction, without hesitation, of the truth of the precise facts in issue.” In
re: J.C., 232 A.3d 886, 894 (Pa. Super. 2020).
Instantly, the trial court concluded that:
[A]fter examining and treating [] Children at CHOP, [Dr. Bennett]
opined[, to a reasonable degree of medical certainty, that]
Children did not have an underlying genetic condition or
underlying bone condition that may have caused the injures and
the parents denied any family history of bone disease. D[octo]r
Bennett opined [] Children’s injuries were most consistent with
abuse, and this [c]ourt relied on that opinion to find the injuries
to both Children were the result of child abuse, and [a]djudicated
[] Children [d]ependent pursuant to 23 Pa.C.S. § 6303(b.1)(1).
This [c]ourt found the Children were victims of child abuse as to
Mother and as to Father, and [r]eports dated 8/07/[]19 and
8/21/[]19 founded as to both parents.
This [c]ourt adjudicated [] Children [d]ependent based upon the
present inability of the parents, the Mother and Father, to provide
safety, and was authorized to make a separate finding of child
abuse for [] Children under the [CPSL], which provides that a local
child services agency investigating child abuse may institute
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dependency proceedings in which it petitions for [a] finding of
child abuse. 23 Pa.C.S. § 6370(b)(2)(i).[22]
Trial Court Opinion, 4/22/21, at 38-39 (footnote omitted).
In cases where there is no direct evidence to identify the perpetrator of
abuse, but the injured child was in a particular responsible party’s care when
the abuse occurred, Pennsylvania courts rely upon the evidentiary
presumption set forth in 23 Pa.C.S. § 6381(d). Section 6381(d) provides that:
Evidence that a child has suffered abuse of such a nature as would
ordinarily not be sustained or exist except by reason of the acts
or omissions 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.
23 Pa.C.S. § 6381(d). See In the interest of J.R.W., supra at 1023 (section
6381(d) “provides for an ‘attenuated’ standard of evidence in making a legal
determination as to the abuser in child abuse cases [where] a child has
suffered serious physical injury . . . as would ordinarily not be sustained or
exist except by reason of the acts or omissions of the parent or other person
responsible for the welfare of the child”); see also In the Interest of L.Z.,
111 A.3d 1164, 1167 (Pa. 2015) (“[T]he fact of abuse suffices to establish
prima facie evidence of abuse by the parent or person responsible.”).
Citing to Commonwealth Court decisions, Mother claims that because
the section 6381(d) presumption was not raised at any point during the
proceedings and because the trial court did not enter any findings with regard
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22 See 23 Pa.C.S. § 6370(b)(2)(i) (if county agency deems it appropriate in
dependency proceeding, agency may petition court under Chapter 63 for
finding of child abuse).
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to section 6381(d), the claim is waived. Mother’s Brief, at 32, 74. See J.W.
Dep’t of Pub. Welfare, 9 A.3d 270, 272-73 (Pa. Commw. Ct. 2010). We
disagree.
Because the Superior Court is not bound by Commonwealth Court
decisions, we decline to follow the cases Mother cites for waiver, especially
where the Superior Court has not spoken on the issue and where the language
in the evidentiary presumption is mandatory. See Commonwealth v.
Lewis, 718 A.2d 1262, 1265 n.10 (Pa. Super. 1998) (Superior Court need not
be bound by Commonwealth Court decisions). Instantly, we agree with DHS
that the presumption is self-executing where DHS’ evidence clearly and
convincingly provided the requisite elements under section 6381(d) and where
Parents were given the opportunity to present rebuttal evidence through
expert witnesses, albeit that testimony was ultimately deemed inadmissible.
See 23 Pa.C.S. § 6381(d) (once county agency demonstrates clear and
convincing evidence that child has “suffered child abuse of such a nature as
would ordinarily not be sustained or exist except by reason of the acts or
omissions of the parent,” it is presumed that parent or other responsible adult
is perpetrator of abuse). Moreover, in response to Mother’s fourth issue on
appeal, since the section 6381(d) presumption applies, the court was not
required to determine the perpetrators’ level of culpability under section 6303.
See In re C.B., 2021 PA Super 189, *21 (Pa. Super. 2021) (trial court’s
culpability finding that abuse inflicted “recklessly” was superfluous where,
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under section 6381(d), “fact of abuse suffices to establish prima facie evidence
of abuse by the parent or person responsible”).
Here, it is not disputed that Parents were the sole caregivers responsible
for Children’s welfare. In addition, DHS’ medical expert, Dr. Bennett, testified
that the injuries suffered by Children were, to a reasonable degree of medical
certainty, non-accidental trauma. Finally, the court concluded that the injuries
were of such a nature that they “would ordinarily not be sustained or exist
except by reason of the acts or omissions of” Parents. 23 Pa.C.S. § 6381(d).
Under such circumstances, where Parents failed to rebut the prima facie
presumption, DHS has succeeded in proving that Mother and Father were
perpetrators of abuse. C.B., supra (trial court properly concluded parents
were perpetrators of abuse under CPSL, where their 5-month-old child
suffered injuries that were non-accidental trauma, injuries occurred while
parents were responsible for child’s welfare, and neither parent could provide
explanation of how injuries occurred). The case before us is precisely the
situation in which the General Assembly intended the presumption be applied.
In re J.R.W., supra at 1023 (presumption protects those innocent victims of
abuse who are “too young . . . to describe their abuse” and necessary in cases
where “agencies [are left] . . . to prove their case with only physical evidence
of injuries that would not ordinarily be sustained but for the action of the
parents or responsible persons”).
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Both Father and Mother next claim that the trial court erred in ruling the
testimony of Doctors Miller and Gootnick inadmissible.23 Specifically, they
claim that Dr. Miller offered his opinion, that Children had weakened bones
due to metabolic bone disease, to a reasonable degree of medical certainty.
Mother also claims that the court improperly struck Dr. Gootnick’s testimony,
expert report and exhibits in their entirety. We disagree.
Instantly, the trial court excluded Dr. Miller’s testimony after concluding
that it did not meet the Frye standard. When reviewing a trial court’s grant
or denial of a Frye motion, an abuse of discretion standard applies. Betz v.
Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012). It is the function of an
appellate court to determine whether the trial court’s decision to exclude Dr.
Miller’s testimony under Frye constituted unreasonableness, or partiality,
prejudice, bias, or ill-will, or such a lack of support so as to be clearly
erroneous. Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003)
(citation omitted).
“[E]videntiary rulings are within the general province of the trial courts
and will not be overturned by an appellate court absent an abuse of discretion,
____________________________________________
23 Father makes no specific argument regarding the trial court improperly
excluding Dr. Gootnick’s testimony other than piggybacking it onto the general
statement that, with respect to the testimony of Dr. Gootnick and Dr. Miller,
the court “erred[] in that it did not follow the Frye standard, which is the
standard in Pennsylvania.” Father’s Brief, at 32. However, the court did not
exclude Dr. Gootnick’s testimony based on Frye, but did so because it found
the expert’s testimony tainted. Thus, we find that Father has failed to
preserve any claimed error with the court’s exclusion of Dr. Gootnick’s
testimony, report, and exhibit.
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as, for example, when the law is overridden or misapplied.” Commonwealth
v. Maconeghy, 171 A.3d 707, 712 (Pa. 2017) (citation omitted).
“With respect to novel scientific evidence, however, this discretion is tempered
by the standard established in Frye[, supra.]” Thomas v. W. Bend Co.,
760 A.3d 1174, 1178 (Pa. Super. 2000). The Frye test assesses “the general
validity of a scientific method.” Id., citing Topa, supra at 1282.
In the seminal case, Frye, the District Court for the District of Columbia
created the requirement that the proponent of expert evidence demonstrate
that the methodology used by the expert to reach his or her scientific
conclusions is generally accepted by scientists in the relevant field, as well as
provide other evidence of acceptance (i.e., textbooks) for it to be admissible.
Pennsylvania adopted Frye in Topa, supra. Later, in Grady, supra, the
Pennsylvania Supreme Court clarified that the Frye rule “applies to an expert’s
method, not his [or her] conclusions.” Id. at 1047. See also Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993) (“Scientific
methodology today is based on generating hypotheses and testing them to
see if they can be falsified[.]”).
Courts accept a variety of sources as evidence that an expert’s
methodology is generally accepted, including judicial opinions, scientific
publications, studies and statistics, expert testimony, or a combination of the
above. In the Interest of M.R., 247 A.3d 1113, 1123 (Pa. Super. 2021)
(citing Commonwealth v. Hopkins, 231 A.3d 855, 872 (Pa. Super. 2020)).
See also Commonwealth v. Walker, 92 A.3d 766, 782-84 (Pa. 2014)
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(scientific evidence, in form of peer-reviewed studies and meta-analyses,
demonstrated fallibility of eyewitness identification testimony; use of
eyewitness expert testimony has gained substantial acceptance by courts
nationally); Commonwealth Nevels, 203 A.3d 229, 238-39 (Pa. Super.
2019) (discussing unpublished Superior Court cases upholding convictions
where expert testimony regarding historical cell-site analysis introduced into
evidence); Commonwealth v. Blasioli, 713 A.2d 1117, 1126-27 (Pa. 1998)
(at Frye hearing in DNA forensic analysis case, Commonwealth presented
numerous scientific texts and journals and testimony of university professors
of human genetics and statistics, including statistical expressions based upon
product rule and ceiling principle, on general acceptance of product rule in
relevant scientific disciplines). Finally, an expert’s personal belief, standing
alone, is not sufficient proof that his or her methodology is generally accepted.
Hopkins, supra at 872,
“Whether a witness is qualified to render opinions and whether his [or
her] testimony passes the Frye test are two distinct inquiries that must be
raised and developed separately by the parties[] and ruled upon separately
by the trial courts.” Grady, 839 A.2d at 1045–46; Pa.R.E. 702 (admissibility
of expert testimony).
Recently, in M.R., supra, our Court deemed inadmissible Dr. Miller’s
expert testimony that his theory, MBDI, rather than abuse, was a plausible
explanation for three-month-old male twins’ multiple, unexplained fractures.
Id. at 1115. Specifically, our Court concluded that it was error for the trial
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court to admit Dr. Miller’s testimony where the doctor’s methodology was not
generally accepted in the medical field. See id. at 1132 (Court concurring
with DHS’ position that “the mere fact of publication is not enough to establish
general acceptance, especially where the medical establishment’s reaction to
those publications has been opprobrium and concern over the misuse of
T[emporary] B[rittle] B[one] D[isease]/MBDI in the courtroom”). Moreover,
the Court rejected the trial court’s determination that Dr. Miller used the same
scientific methodology as CHOP and Nemours, Alfred I. DuPont doctors where
Dr. Miller’s method of interpreting the twins’ x-rays was, itself, not generally
accepted and where Dr. Miller and his consulting radiologist viewed them “in
a compressed version on PowerPoint instead of using the proper imaging
equipment.” Id. at 1133. Moreover, the Court noted that Dr. Miller had not
interpreted the x-rays correctly, where he had labeled normal, healthy
features as evidence of rickets or other bone defects. Id. Finally, the Court
debunked Dr. Miller’s claim that he relied on “diagnostic testing” and “medical
histories,” where, “in reality, his opinion was not based on any diagnostic
testing, as that testing had been ruled out by any medical risk factors for bone
fragility[.]” Id.
Similarly, in this case, Dr. Miller presented MBDI as the cause of
Children’s unexplained injuries, presenting himself as someone who had
studied infant bone disorders for the last 26 years and evaluated over 900
infants with unexplained injuries. N.T. Dependency/Abuse Hearing, 9/23/20,
at 189, 287. Doctor Miller acknowledged, however, that his theory, MBDI,
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has been negatively reviewed in child abuse and pediatric radiology journals
and that the child abuse expert community does not accept his theory. Id. at
197-98.
Doctor Miller testified that in the instant case, he reviewed Mother’s
pregnancy and delivery history, Children’s past medical history, discs of
imaging studies (skeletal surveys/x-rays of bones), and conducted a 15-
minute video conference with Mother on December 20, 2019, during which he
diagnosed she had Temporomandibular Joint Disfunction (TMJ). Id. at 209-
20. He testified that after examining all of the above histories and images, he
“found multiple risk factors for fragile bones or what [he] call[s] metabolic
bone disease of infancy.” Id. at 210. The risk factors he listed were that
Children were twins, they were breech at birth, they had very short umbilical
cords, Mother was on magnesium prior to delivery, Mother had low levels of
calcium and high alpha phosphatase in her third-trimester of pregnancy
(increasing the risk for Vitamin D deficiency), and Mother had marked joint
laxity. Id. at 211-13, 235, 248. Based on these risk factors, Dr. Miller
concluded that “I think the most likely cause is these risk factors combined
then led to the diagnosis of metabolic bone disease of infancy[,]” which can
lead to “fractures with minimal forces.” Id. at 213. Doctor Miller also testified
that it was “[p]robably unlikely” that Children’s injuries were the result of child
abuse, id., noting that if the injuries were the result of violent forces exerted
on Children it is unusual that they evidenced no skin injuries. Id.
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When asked about his “methodology” behind MBDI, Dr. Miller testified
that his theory applies Dr. Harold Frost’s Utah Paradigm, a scientific model
that added bone loading to the equation of what determines bone strength.
Id. at 224-26. Moreover, Dr. Miller testified that in conducting his analyses,
he uses a CT bone density machine, id. at 217, relies on the history of risk
factors known to lead to a predisposition of weaker bones, conducts studies
of children self-referred by parents or attorneys,24 relies on mothers’
representations of decreased fetal movement during pregnancy, and refers to
peer-reviewed literature on fetal restriction that utilizes ultrasound technology
and other technologies to measure bone density. Id. at 222. Specifically,
with regard to this case, Dr. Miller testified that he looks at a “multifactorial[25]
analysis to determine . . . bone strength.” Id. at 231.
In Snizavich v. Rohm & Haas Co., 83 A.3d 191 (Pa. Super. 2013),
our Court noted that
[T]he minimal threshold that expert testimony must meet to
qualify as an expert opinion rather than merely an opinion
expressed by an expert, is this: the proffered expert testimony
must point to, rely on or cite some scientific authority—
whether facts, empirical studies, or the expert’s own
research—that the expert has applied to the facts at hand and
which supports the expert’s ultimate conclusion. When an
expert opinion fails to include such authority, the trial court
____________________________________________
24 These children’s parents were involved in litigation in either the criminal
justice system or with a Children and Youth Agency. See N.T.
Dependency/Abuse Hearing, 9/23/20, at 269.
25Doctor Miller testified that the term “multifactorial” means “that both genes
and environmental factors” play into the analysis underlying MBDI. Id. at
306.
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has no choice but to conclude that the expert opinion
reflects nothing more than mere personal belief.
Id. at 197 (emphasis added). See also Grady, supra at 1045 (“proponent
of expert scientific evidence bears the burden of establishing all of the
elements for its admission under Pa.R.E. 702, which includes showing that the
Frye rule is satisfied”).
Instantly, the trial court found Dr. Miller’s opinion was not commonly
held by experts in his area of expertise and that his opinion “is deficient as a
matter of law in that it does not express a level of certainty consistent with
Pennsylvania Jurisprudence.” Trial Court Opinion, 4/22/21, at 19. On direct
examination, counsel pointed out that in other jurisdictions, Dr. Miller’s theory
of MBDI has been regarded as a “fringe” or “novel opinion,” one that
“remained unproven and generally unaccepted in the medical community,”
and one that had been “negatively peer reviewed in several publications.” Id.
at 20. Moreover, Dr. Miller admitted he is neither a pediatric radiologist nor
did he have formal training in child abuse. Id. at 21.
The court specifically stated at the dependency/abuse hearing, “the
Doctor’s opinions are not commonly held by experts in the area of his
expertise and[, therefore,] the Frye motion is granted.” N.T.
Dependency/Abuse Hearing, 1/27/21, at 124 (emphasis added). However,
Pennsylvania cases adopting the Frye standard have clearly stated that the
scientific community only needs to accept an expert’s principles or
methodology underlying his or her opinions or conclusions, and not the
conclusions themselves. See Grady, 839 A.3d at 1045 (“This does not mean,
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however, that the proponent must prove that the scientific community has
also generally accepted the expert’s conclusion. We have never required and
do not require such a showing.”). Accord: Walsh v. BASF Corp., 234 A.3d
446 (Pa. 2020); Trach v. Fellin, 817 A.2d 1102, 1114 (Pa. Super. 2003).
See also Pa.R.E. 705 (“If an expert states an opinion the expert must state
the facts or data on which the opinion is based.”). As our Court acknowledged
in Nevels, supra, whether there is a legitimate dispute regarding the
reliability of an expert’s conclusions bears on the determination of whether
that expert’s technology is “novel” scientific evidence, not upon the
methodology underlying that evidence. Nevels, 203 A.3d at 239.
In its Rule 1925(a) opinion, the trial judge clarified his ruling on the
inadmissibility of Dr. Miller’s expert testimony, stating:
Further, Dr. Miller’s opinion is deficient as a matter of law in that
it does not express a level of certainty consistent with
Pennsylvania [j]urisprudence which requires that an [e]xpert
must testify to a reasonable degree of medical certainty. “An
expert fails this standard of certainty if he testifies ‘that the
alleged cause’ ‘possibly’ or ‘could have’ led to the result, that it
‘could very properly account’ for the result, or even that it was
‘very highly probable’ that it caused the result.” Eaddy v.
Hamary, 694 A.2d 639, 642 (Pa. Super 1997) (citation omitted).
Accordingly, as [P]arents did not meet their burden of showing
that the medical community generally accepts the scientific
methodology used by Dr. Miller in reaching his conclusion that
MBDI caused these Children’s injuries, this Court found Dr. Miller’s
opinion does not meet the admissibility standards governed by the
Pennsylvania Rules of Evidence and Frye and[,] therefore[,] is
excluded.
Trial Court Opinion, 4/22/21, at 30-31 (citation omitted) (emphasis added).
Thus, the court explained that with respect to Frye, it concluded that the
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methodology used by Dr. Miller to reach his theory of MBDI was not generally
accepted by the scientific community. Moreover, with regard to Dr. Miller’s
overall expert opinion as to the mechanism of Children’s injuries, the court
concluded it lacked the level of certainty legally required to be admissible.
See Pa.R.E. 702 (Comment) (“Pa.R.E. 702 does not change the requirement
that an expert’s opinion must be expressed with reasonable certainty.”).
We disagree with the court’s conclusion that Dr. Miller did not express
his opinion to a reasonable degree of medical certainty. In fact, Dr. Miller
specifically testified “to a reasonable degree of medical certainty” that he
believed Children’s injuries were caused by MBDI. See N.T.
Dependency/Abuse Hearing, 9/23/20, at 250-51 (Doctor Miller answering in
the affirmative when asked on direct examination as to whether he was able
to say “to a reasonable degree of medical certainty” that MBDI was the cause
of Children’s injuries).
However, we concur with the court’s determination that Dr. Miller’s
testimony was nonetheless inadmissible based on the principles espoused in
Frye— specifically, that Dr. Miller failed to prove that his methodology
supporting MBDI was generally accepted in the medical community. See Trial
Court Opinion, 4/22/21, at 19-31. In discussing the methodology behind Dr.
Miller’s medical opinion that MBDI caused Children’s injuries, the court noted
that Dr. Miller did not perform advanced bone testing on Children or assess
their bone strength. The court also relied upon Dr. Bennett’s expert
testimony. See In the Interest of M.R.; supra; Hopkins; supra.
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Specifically, Doctor Bennett testified that, to her knowledge, the term
“metabolic bone disorder of infancy,” used by Dr. Miller, is not a medical term
commonly accepted by the vast majority of medical providers, including
pediatric specialists or child abuse teams, and it has also not been recognized
in any type of publication taught to doctors.26 N.T. Dependency/Abuse
Hearing, 9/23/20, at 69-72. The court also found convincing two statements,
one made by the Society for Pediatric Radiology and one by the European
Society of Pediatric Radiology, denouncing TBBD (a subset of MBDI) because
it “lacks the appropriate grounding in scientific methods and procedures
because it is based on the unsupported speculation and subjective beliefs of a
small number of medical professionals.” Trial Court Opinion, 4/22/21, at 29
(emphasis added).
Here, Dr. Miller, as the proponent of a novel scientific theory, failed to
meet his burden of proving that the methodology behind MBDI had general
acceptance in the scientific community. Grady, supra. Evidence was
admitted showing that Dr. Miller’s scientific theories (TBBD & MBDI) were
____________________________________________
26 Although presumably going to the weight of Dr. Miller’s opinion, Dr. Bennett
also testified that contrary to much of Dr. Miller’s testimony, Children were
not born prematurely. Moreover, notably Child’s vitamin D level was normal,
there was no evidence of rickets in Child’s bones, and there was no evidence
of bone mineralization on Children’s x-rays. Doctor Bennett also noted that
Mother was taking pre-natal vitamins, including vitamin D, was receiving
prenatal care, and fed Children formula that was most likely fortified with
vitamin D. Finally, the court noted that Dr. Bennett testified Children’s birth
records did not indicate any concerns about injuries or anything that occurred
during the birth process.
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discredited by other state courts, had been negatively peer-reviewed in
several publications, and that other courts have found that the doctor’s
theories were based on “subjective interpretation regarding the existence of
the factors, that in his opinion, genetically exist in metabolic bone disease.”
Trial Court Opinion, 4/22/21, at 21. Accordingly, we conclude that the trial
court’s decision to exclude Dr. Miller’s expert testimony was not the result of
manifest unreasonableness, partiality, prejudice, bias, or ill-will or that it
lacked support so as to be clearly erroneous. Grady, supra; Paden v. Maker
Concrete Constr. Inc., 658 A.3d 341, 343 (Pa. 1995).
With regard to Mother’s claim that the trial court impermissibly excluded
Dr. Gootnick’s expert testimony, report, and trial exhibits, we are aware of
the well-established standard that “[t]he admission of expert testimony is a
matter within the sound discretion of the trial court, whose rulings thereon
will not be disturbed absent a manifest abuse of discretion.” Woodard v.
Chatterjee, 827 A.2d 433, 440 (Pa. Super. 2003) (quoting Walsh v. Kubiak,
661 A.2d 416, 419 (Pa. Super. 1995) (en banc)). To be deemed admissible,
“expert testimony must be based on more than mere personal belief, and
must be supported by reference to facts, testimony[,] or empirical data.”
Snizavich, 83 A.3d at 195 (citation omitted). Moreover, the fair scope rule
provides that “an expert witness may not testify on direct examination
concerning matters which are either inconsistent with or go beyond the fair
scope of matters testified to in discovery proceedings or included in a separate
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report.” Woodard, 827 A.3d at 441 (citations omitted); see also Pa.R.C.P.
4003.5(c).
The question to be answered is whether, under the particular facts
and circumstances of the case, the discrepancy between the
expert’s pre-trial report and his trial testimony is of a nature which
would prevent the adversary from making a meaningful response,
or which would mislead the adversary as to the nature of the
appropriate response.
Id. (quoting Feden v. CONRAIL, 746 A.2d 1158, 1162 (Pa. Super. 2000))
(emphasis removed).
In excluding Dr. Gootnick’s testimony, expert report, and trial exhibits,
the court found that Dr. Gootnick’s “testimony was tainted, . . . [and found]
her [e]xhibits, both the [e]xpert [r]eport of 4/15/20, and the demonstrative
evidence she presented during her testimony on 1/27/21, to be also tainted.”
Trial Court Opinion, 4/22/21, at 37. The court concluded that the taint: (1)
“[wa]s such that [it] could not believe anything the doctor said[;]” (2) “tainted
everything that she has offered an opinion on[;]” and (3) “corrupts the whole
process[,] . . . the witness[,] . . . [and] everything the witness says.” Id. at
37-38.
The court based its conclusion that the doctor’s testimony, report, and
exhibits were tainted from the fact that several statements in Dr. Gootnick’s
April 15, 2020 expert report were incorrect, including:
• an opinion that “the twin’s bones were weakened at birth
due to the prematurity and IUGR Intrauterine Grown
Retardations, [and, thus, Child’s] bones were more likely to
break during Cesarean Section. [So y]ou’re suggesting that
the fracture of the femur occurred during the C[-]Section?
No. I mentioned this to [my attorney] yesterday that the
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last sentence is incorrect. And I[,] for some reason[,] I
have no idea where that came from but that is
incorrect. It is not a well-known side effect[] of birth, a
C[-]Section. I would like to—that’s something that should
have been changed.” N.T. [Dependency/Abuse Hearing,]
1/27/21, at 107 (emphasis added);
• a statement that “ So in your initial report you do refer to a
fracture of [La.- Ra.]’s left femur correct. That’s another
one of those things that should not be in there. . . . I
don’t believe that’s an insufficiency fracture. . . . Like
I said when this report was modified [it was] not by
myself. . . . I have no idea [who modified it].”
• an opinion that “[a]rea in the sections do not cause blood
fractures in general. And if they do, they cause them in the
clavicles in the shoulders.”
N.T. Dependency/Abuse Hearing, 1/27/21, at 107, 114-15, 118 (emphasis
added). The following discourse took place between the Child Advocate and
Dr. Gootnick, during cross-examination, about the alleged “added”
information contained in her expert report:
Child Advocate: Doctor Gootnick, are you saying that your April
2020 report was changed by somebody other than yourself?
Dr. Gootnick: Yes.
Child Advocate: Do you have any idea who would have taken your
report that was provided to all counsel and the [c]ourt in advance
of this hearing and who would have changed that report?
Dr. Gootnick: I don’t know. But [Mother’s attorney] and I spoke
about it yesterday and I mentioned that to him. I have no idea.
Child Advocate: You’re certainly not suggesting [Mother’s
attorney] changed[,] it are you?
Dr. Gootnick: I have no idea who did it.
* * *
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Child Advocate: And you cannot offer any thoughts whatsoever
on who would have taken your expert report with your signature
on the bottom of it on Page 8 and would have made changes to
that report?
* * *
Dr. Gootnick: I have no idea who wrote it.
N.T. Dependency/Abuse Hearing, 1/27/21, at 115-18.27 At this point, the
Child Advocate and DHS’ attorney moved to strike all of Dr. Gootnick’s
testimony, including her expert report and demonstrative evidence. Id. at
119. In response to the oral motion, Mother’s counsel stated that he “ha[s]
no idea how those statements [in the expert report] came to be changed or
____________________________________________
27The trial judge also questioned Dr. Gootnick about the statements in the
expert report that she did not make:
Court: [Your report w]as modified at what point in time?
Dr. Gootnick: I don’t know.
Court: Was that your initial report the [one from] 4/15?
Dr. Gootnick: Absolutely. No question about it.
Court: You signed off on it?
Dr. Gootnick: I did.
Court: Then what modification are we talking about? I’m not
getting the picture here.
Dr. Gootnick: Your Honor, I signed off on it before it was modified.
Court: It was modified after you signed off on it?
Dr. Gootnick: Correct.
Id. at 117.
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[are now ]different than [those in Dr. Gootnick’s] original opinion.” Id. at
120. Mother’s attorney argued that since Dr. Gootnick’s opinion “has been
clear [and h]er convictions have been stated to a reasonable degree of medical
certainty on the two particular issues . . . regarding the left femur fracture as
well as the right femur fracture and the status of the bone health at the time,”
that he was willing to stipulate to strike those portions of Dr. Gootnick’s report
that she now “disavows[,] . . . but d[id] n[o]t believe that . . . it’s appropriate
to strike all of her testimony and her report[.]” Id. Father’s counsel also
argued that the “added” statements in Dr. Gootnick’s report are “separable
from the report in general [and her demonstrative exhibit]” and that “her
testimony ha[d] been clear and consistent and isn’t anchored to the report in
the sense that her testimony should be excluded.” Id. at 121. Father’s
attorney found the issue to be one of weight of the evidence, not admissibility
of the evidence. Id.
After the Child Advocate and DHS’ attorney reminded the trial judge that
Dr. Gootnick “spoke with counsel . . . regarding the inconsistencies in her
report[, and where a]t no time was that disclosed to the court or any party in
th[e] matter[,]” the court struck Dr. Gootnick’s testimony “in totality[,
including] the exhibits[,] her report of 4/15[/20,] and the document that was
offered as demonstrative evidence.” Id. at 123.
Here, under Rule 4003.5, Dr. Gootnick testified to matters that differed
from those statements and opinions expressed in her expert report (albeit
apparently not authored by her). Moreover, the trial court’s confidence in Dr.
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Gootnick’s expert testimony was severely undermined by her admission that
the report she signed as her own had, in fact, been altered by an unknown
individual. Under such circumstances, we can appreciate that the trial judge
was unable to sever the alleged additional information contained in her expert
report from the remainder of her testimony. In the eyes of the fact finder,
Dr. Gootnick’s credibility was compromised and therefore, striking her
testimony, in addition to her expert report and evidence, was not an abuse of
discretion. Woodard, supra; Walsh, supra. See also N.B.-A., supra at
668 (“As an appellate court, we are required to accept the findings of fact and
credibility determinations of the trial court, if they are supported by the
record; however, th[is] [C]ourt is not bound by the lower court’s inferences
or conclusions of law.”).
Next, Mother and Father argue that the trial court erred when it
determined that Children were dependent and found that it was “clearly
necessary” for the Children to be removed from their care where Parents:
were compliant with visits and medical appointments; acted appropriately with
Children during visits; were well-bonded to Children; and, the “isolated”
incidents of alleged abuse occurred one year prior to the court’s dependency
determination. Mother’s Brief, at 2.
Our scope of review in child dependency cases “is limited in a
fundamental manner by our inability to nullify the fact-finding of the [trial]
court.” In re Read, 693 A.2d 607, 610 (Pa. Super. 1997). We accord great
weight to the hearing judge’s findings of fact because the judge is in the best
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position to observe and rule upon the credibility of the witnesses. Id. “Relying
on this unique posture, we will not overrule the findings of the trial court if
they are supported by competent evidence.” Id. See also In the Interest
of X.P., supra at 1276 (well-settled 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 [trial] court’s inferences or
conclusions of law”).
The Juvenile Act defines a dependent child, in relevant part, as a child
who:
is without proper parental care or control, subsistence,
education as required by law, or other care or control
necessary for his physical, mental, or emotional health, or
morals. A determination that there is a lack of proper parental
care or control may be based upon evidence of conduct by the
parent, guardian or other custodian that places the health, safety
or welfare of the child at risk[.]
42 Pa.C.S. § 6302 (emphasis added). Proper parental care is defined as “that
care which (1) is geared to the particularized needs of the child and (2) at a
minimum, is likely to prevent serious injury to the child.” In Interest of
Justin S., 543 A.2d 1192, 1200 (1988) (citation omitted). Moreover, “[a]
finding of abuse[,]” based on clear and convincing evidence, “may support an
adjudication of dependency.” In the Matter of C.R.S., 696 A.2d 840, 843
(Pa. Super. 1997).
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Notably, a dependent child’s “proper placement turns on what is in the
child’s best interest, not on what the parent wants, or which goals the
parent has achieved.” See In re J.J., 69 A.3d 724, 732 (Pa. Super. 2013)
(emphasis added) (citations omitted). A child may be removed from a
parent’s care only upon a showing of clear necessity; clear necessity exits
where “the continuation of the child in his home would be contrary to the
welfare, safety, or health of the child and reasonable efforts were made prior
to the placement of the child to prevent or eliminate the need for removal[.]”
See 42 Pa.C.S. §§ 6301, 6351(b).
Here, the trial court adjudicated Children dependent and committed
them to DHS’ custody based upon Children’s young age and vulnerability and
the severity of the injuries Children sustained while in Parents’ sole care. The
court found that it was clearly necessary to place Children in DHS’ care, where
their safety could not be assured if they were returned to Parents after
Children had suffered unexplained bodily injuries in the form of multiple bone
fractures and a subdural hematoma. Despite the fact that Parents attended
visits with Children, were bonded to them, and complied with their case plan
objectives, the fact remains that the trial judge concluded that placement
outside of the family home was in Children’s best interests and adjudicated
them dependent. In re J.J., supra. The court’s findings are supported by
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J-S23002-21 & J-S23003-21
competent evidence. In re Read, supra. Thus, we find no abuse of
discretion.28 J.R.W., supra.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2021
____________________________________________
28Notably, the trial court emphasized that despite the finding of abuse with
regard to Parents, “the goal is still a reunification.” N.T. Dependency/Abuse
Hearing, 1/27/21, at 211.
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