In the Interest of: B.L., a Minor Appeal of: E.L.

J-A22039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: E.L., MOTHER : No. 201 MDA 2016
Appeal from the Dispositional Order December 21, 2015
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000197-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2016
Appellant, E.L. (“Mother”), challenges the order entered in the
Lancaster County Court of Common Pleas, which adjudicated B.L. (“Child”) a
dependent child and placed him in the custody of the Lancaster County Child
and Youth Social Service Agency (“Agency”). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Mother raises the following issues:
WHETHER THE TRIAL COURT ERRED IN FINDING THAT
[CHILD] IS AN ABUSED CHILD AND THAT MOTHER IS A
PERPETRATOR OF ABUSE AGAINST CHILD?
WHETHER THE TRIAL COURT ERRED IN FINDING THAT
[CHILD] IS A DEPENDENT CHILD WHERE THE TESTIMONY
ESTABLISHED THAT THE PARENTS PROVIDED PROPER
CARE AND CONTROL AND THAT SEPARATION FROM THE
PARENTS WAS NOT NECESSARY?
J-A22039-16
(Mother’s Brief at 4).
The applicable scope and 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 A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)).
We accord great weight to this function of the hearing
judge because [the court] is in the position to observe and
rule upon the credibility of the witnesses and the parties
who appear before [the court]. Relying upon [the court’s]
unique posture, we will not overrule [its] findings if they
are supported by competent evidence.
In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000) (quoting In re B.B., 745
A.2d 620, 622 (Pa.Super. 1999)) (citations omitted). See also In re L.Z.,
___ Pa. ___, ___, 111 A.3d 1164, 1174 (2015) (reiterating standard of
review in dependency cases requires appellate court to accept trial court’s
findings of fact and credibility determinations if record supports them, but
appellate court is not required to accept trial court’s inferences or
conclusions of law); In re D.P., 972 A.2d 1221, 1225 (Pa.Super. 2009),
appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009) (stating applicable
standard of review in dependency cases is “abuse of discretion”). Further, in
placement and custody cases involving dependent children:
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The trial court, not the appellate court, is charged with the
responsibilities of evaluating credibility of the witnesses
and resolving any conflicts in the testimony. In carrying
out these responsibilities, the trial court is free to believe
all, part, or none of the evidence. When the trial court’s
findings are supported by competent evidence of record,
we will affirm even if the record could also support an
opposite result.
In re S.G., 922 A.2d 943, 947 (Pa.Super. 2007).
The Child Protective Services Law defines “child abuse,” in relevant
part, as follows:
§ 6303. Definitions
(b.1) Child abuse.--The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the
following:
(1) Causing bodily injury to a child through
any recent act or failure to act.
* * *
23 Pa.C.S.A. § 6303(b.1)(1).
The existence of “child abuse” pursuant to Section 6303(b.1) must be
proven by clear and convincing evidence. In re L.Z., supra. Under certain
circumstance, however, the identity of an abuser may be established by
prima facie evidence. Id. See also In re L.V., 127 A.3d 831, 837-38
(Pa.Super. 2015).
[E]vidence that a child suffered injury that would not
ordinarily be sustained but for the acts or omissions of the
parent or responsible person is sufficient to establish that
the parent or responsible person perpetrated that abuse
unless the parent or responsible person rebuts the
presumption. The parent or responsible person may
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J-A22039-16
present evidence demonstrating that they did not inflict
the abuse, potentially by testifying that they gave
responsibility for the child to another person about whom
they had no reason to fear or perhaps that the injuries
were accidental rather than abusive. The evaluation of the
validity of the presumption would then rest with the trial
court evaluating the credibility of the prima facie evidence
presented by the CYS agency and the rebuttal of the
parent or responsible person.
In re L.Z., supra at ___, 111 A.3d at 1185 (internal footnote omitted).
Significantly, courts do not require a parent’s physical presence during
the injury for “abuse” to occur. Id. at ___, 111 A.3d at 1184. To the
contrary, our Supreme Court has stated, “parents are always responsible for
their children, absent extenuating circumstances….” Id. Moreover, “[t]he
inclusion of ‘omissions’ encompasses situations where the parent or
responsible person is not present at the time of the injury but is nonetheless
responsible due to…her failure to provide protection for the child.” Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Jay J.
Hoberg, we conclude Mother’s issues merit no relief. The trial court’s
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed April 4, 2016, at 1-11) (finding:
(1) at time of injury, Child was six months old; on day of injury, Child was
not moving his injured arm, necessitating visit to emergency room; nurse
practitioner who treated Child during emergency room visit initially believed
injury was “nursemaid’s elbow” and performed reduction procedure; after
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J-A22039-16
reduction, Child was still unable to use arm and cried in pain when arm was
moved; X-rays revealed Child had suffered spiral fracture of humerus, which
is commonly caused by twisting; Dr. Kathryn Crowell, expert in pediatrics
with specialty in child abuse, who evaluated Child, established Child’s injury
caused Child significant, ongoing pain; spiral fracture caused Child
substantial pain and impaired Child’s physical functioning; Mother initially
stated Child was fine before napping in Child’s swing on day of injury; Child’s
parents later stated injury could have been caused by Child “dancing” with
his four-year-old half-sister; Child’s parents also stated nurse practitioner’s
initial treatment caused Child’s injury; clear and convincing evidence
demonstrated Child’s injury was result of child abuse; Dr. Crowell
established that Child’s parents’ explanations for injury were implausible and
would not have resulted in type of injury Child sustained; Dr. Crowell
explained it was extremely unlikely that four-year-old half-sister could have
caused Child’s injury; Child’s injury was present before treatment; Child’s
parents’ explanations for injury were inconsistent, evasive, and lacked
credibility; testimony of nurse practitioner and Dr. Crowell was credible and
persuasive; Child’s injury satisfied definition of “child abuse”; Child’s parents
were Child’s only caregivers in days leading up to Child’s injury; prima facie
evidence demonstrated Child’s parents were perpetrators of child abuse;
Child’s parents’ explanations for Child’s injury were inconsistent with medical
evidence; Child’s parents’ rebuttal did not outweigh totality of credible
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evidence and medical records; and (2) clear and convincing evidence
showed Child was abused and without proper parental care; Child’s injury
would not have occurred but for Child’s parents’ acts or omissions; Child,
therefore, is dependent child). The record supports the court’s dependency
decision. Accordingly, we affirm on the basis of the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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Circulated 08/31/2016 01:40 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
JUVENILE COURT DIVISION
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OPINION SUR APPEAL ("")
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On October 1, 2015, the Lancaster County Children and Youth Social Service~en~f
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(hereinafter "Agency") filed a Petition for Temporary Custody of 'B .. L., i' '(he~nafter
"B.L."). B.L. is a minor male child who was born January, t201s. Hearings were held on
October 2, 2015, and December 21, 2015. The Agency requested that B.L. be found a dependent
child and a victim of abuse. The Agency also requested that child's mother/ ~. L.
(hereinafter "Mother"), and child's father, .:::f: L.. r(hereinafter "Father")(collectively
"Parents"), be found to be the perpetrators of B.L. 's abuse. On December 21, 2015, the Court
found B.L. to be both a victim of abuse and a dependent child, and found Mother and Father, as
the child's primary caregivers, to be perpetrators of abuse against B.L.
Mother filed a timely Notice of Appeal on February 1, 20161, and asserts three issues in
her 1925(b) statement. Father also filed a timely Notice of Appeal on February l, 2016, and
asserts four issues in his 1925(b) statement. The cases were consolidated and this Opinion Sur
Appeal address both Statements of Errors Complained of on Appeal.2 Parents first argue that the
Court erred in finding the child to be an abused child and that Parents were the perpetrators of
· --- --that alfuse·.-ParefitsfiinneY maintain that they did not injure· ilie child nor a428 Pa. Super. 597, 631 A.2d 1019(1993).
In resolving abuse allegations, the Court must refer to the definitions provided in both the
Act and the CPSL. The CPSL defines "child abuse", in part, as, "intentionally, knowingly or
recklessly doing any of the following: (1) causing bodily injury
.. -··.
to a child through any recent act .. _,_ .... _
of failure to act." §6303 (b. l )( 1 ). "Bodily injury" is defined as "impairment of physical condition
or substantial pain." §6303(a). "Intentionally," "knowingly" and "recklessly" are terms defined
in 18 Pa.C.S. §302 (relating to general requirements of culpability). "Perpetrator" is also defined
as "a person who has committed child abuse as defined in this section," and can be a parent of
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the child. Id. When determining whether child abuse occurred, innuendo and suspicion alone are
not enough to compel a finding of child abuse. Matter of Read, 693 A.2d 607 (Pa. Super. 1997).
Instead, the abuse must be established by clear and convincing evidence. Id.The record supports and the Court found by clear and convincing evidence that the
injuries that B.L. sustained impaired his physical condition and resulted in substantial pain,
pursuant to Section 6303(b.1 ). Parents testified the Child was not moving his arm, necessitating
the visit to LOH. The X-Rays revealed B.L. suffered a spiral fracture of his humerus, which
impaired his physical functioning and explained his unwillingness to use his arm. Dr. Crowell
testified that in addition to B.L. 's inability to move his arm, the injury that caused a spiral
fracture, would have caused significant, on-going pain. It is clear, B.L. suffered substantial pain
from his spiral fracture. He would not move his arm and cried when other's tried to move it.
Furthermore, an analysis of the record reflects the substantial evidence presented in support of
this Court's finding that B.L.'s injuries satisfied the definition of "child abuse" and the identity
of the parents as the perpetrators of that abuse. Evidence of the requisite intentional, knowing, or
reckless act causing bodily injury can be established through circumstantial evidence of
sufficient quantity and quality. Malice need not be proved to establish child abuse. This
circumstantial evidence is more fully discussed in the next part of this opinion.
The Superior Court has long recognized the applicability and importance of the
evidentiary presumption in Section 638l(d) regarding the identity of the abuser. While the
-------------·--- ..-
Agency has the burden of proving the existence of child abuse by clear and convincing evidence,
the identity of the perpetrator of that abuse need only be established through prima facie
evidence in certain circumstances. §634l(c). 23 Pa. C.S.A. § 6381(d) provides:
Evidence that a child suffered child abuse of such a nature as would ordinarily not
be sustained or exist except by reason of the acts or omission of the parent or other
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person responsible for the welfare of the child shall be prima facie evidence of child
abuse by the parent of other person responsible for the welfare of the child.
§6381(d); B.B. v. Department of Public Welfare, 17 A.3d 995; C.S. v. Department of Public
Welfare, 972 A.2d 1254.
When a child is in the care of multiple parents, both parents are accountable for the care
and protection of the child, whether they actually inflict the injury or failed in their duty to
protect the child. Prima facie evidence is sufficient to establish that the parent perpetrated that
abuse unless the parent rebuts the presumption. Pennsylvania case law states that the
presumption satisfies the intent element unless the prima facie evidence is successfully rebutted.
In the Interest of L.Z., 111 A.3d 1164 (Pa. 2015). Parents may present evidence demonstrating
that they did not inflict the abuse, potentially by testifying that they gave responsibility to
another person or the injuries were accidental rather than abusive. Evaluation of the validity of
presumption then rests with the trial court to weigh the credibility of the prima facie evidence
presented by the Agency and the rebuttal of the Parents. Id.The record shows that Parents were B.L. 's sole caregivers the days leading up to his
injury. Mother testified that B.L. was fine before napping in his swing the day of the injury. She
testified that she left the Child alone with Father for about an hour while she showered and
helped a neighbor. She further testified that upon returning to the living room, Father called her
attention to Child's injury. Parents do not argue any other individuals were caring for B.L. during
.... -· ffiat time. - ------- -·
Moreover, the Court found neither of Parents' explanations for B.L. 's injury to be
credible. They failed to rebut the presumption. Dr. Crowell testified that neither of the
explanations Parents gave would have resulted in the type of injury B.L. sustained. It was
extremely unlikely that a four year old child would be able to cause the injury given the amount
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of force necessary to cause a spiral fracture. Moreover, even if the four year old had caused the
spiral fracture, B.L. would have resulted in the impairment of his arm and cried out immediately
from pain. According to Parents, it was only after his nap that they noticed B.L. wasn't using his
arm. Therefore, the Court did not find the explanation that Child's sibling inflicted the injury
credible.
Upon being told that their first explanation was inconsistent with the medical evidence,
Parents then accused the LGH Nurse Practitioner, Ms. Garber, of causing the injury. It is not
contested that B.L. displayed symptoms of an injury to his arm prior to his visit to LGH. The
Parents' account indicates that B.L. wasn't using his ann and that he cried when his arm was
moved. The record is quite clear that B.L.'s injuries were present prior to Ms. Garber's
reduction. Even after the reduction was attempted, B.L. continued to cry. This suggested to Ms.
Garber that it was not a nursemaid's elbow. After reviewing the X-Rays, it was determined that
the pain was caused from the spinal fracture.
After again being told his explanation was not consistent with the medical evidence,
Father then testified in an attempt to blame Ms. Garber. Contrary to all the other evidence in the
record, Father testified that B.L. was so upset by Ms. Garber's presence that he would cry when
she was around but did not cry any other time. Father also testified that the child was
comfortable during the second attempt at reduction performed by Dr. Dumornay, and was fine
immediately afterward. Ironically, these were the exact behaviors Ms. Garber indicated in her
·------------
testimony that a Child would display before and after a successful reduction. The Court infers
that Father is implying Ms. Garber performed the reduction incorrectly and the doctor performed
the reduction correctly. However, the Court does not follow Father's logic. Specifically, if the
Court were to believe Father that Ms. Garber caused the spiral fracture during the reduction, then
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B.L. would not be calm during the second reduction, but instead would be in pain from that new
injury.
Ms. Garber routinely and successfully performed reductions approximately once a week
and treats them using the same method. Furthermore, Dr. Crowell testified that a spiral fracture
would not occur from an ordinary reduction. Parents' attempts to shift the blame lacks any
credible explanation for B.L. 's injuries.
Therefore, the Court found that clear and convincing evidence was presented that the
injuries the Child sustained were the result of child abuse. The injuries could not be acceptably
explained away by his parents. The medical evidence established that the Child's injuries were
non-accidental and were consistent with child abuse. The totality of the record establishes by
clear and convincing evidence that the injuries were either intentionally or knowingly or
recklessly inflicted on the Child. Prima facie evidence was presented as explained above that
Mother and Father were perpetrators of the abuse.
Parents also appeal the finding of dependency. The Courts have held that "A finding of
abuse may support an adjudication of dependency." In re C.R.S., 696 A.2d 840, 843 (Pa. Super.
1997). That is exactly the basis for the Court's decision. Parents argue that they did not cause the
abuse and posed no risk to the child, and therefore, a finding of dependency was made in error.
The Court again disagrees. The totality of the record establishes that clear and convincing
evidence that B.L. was a victim of child abuse as defined in the statute. "The fact that his parents
express bewilderment over the cause of his injuries does not obviate their responsibility." In the
Interest of J.O.V., 454 Pa. Super. 630, 686 A.2d 421, 423 (1996). In determining whether there
exists proper care, equal weight is given to acts and omissions since parental duty includes
protection of child from harm §6302( I).
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In determining dependency, the Court's primary consideration was the safety and health
of the Child, the victim of the physical abuse. Clear and convincing evidence existed that the
Child was abused and without parental care and that Child's injuries would not have occurred
but for Parents' acts or omissions as his primary caregivers. The record supports the Court's
finding that B.L. is a dependent child.
Parents also argue that Ms. Garber's testimony was contradictory and questionable. The
Court examined the exhibits admitted to the record to gain a more accurate timeline in instances
where testimony was unclear. Despite Parents arguments to the contrary, the Court found the
testimony of Ms. Garber and Dr. Crowell to be credible and persuasive. In contrast, the Court
found Parents' testimony to be evasive and lacking credibility. Parents were unable to provide a
consistent explanation for B.L. 's injuries that would fit with the medical evidence. They were
unable to answer any specific questions on when the original injury occurred. And they
attempted to blame others once they discovered the medical evidence rejected their prior
explanation.
Furthermore, Father argues that Dr. Crowell's testimony should be disregarded because it
was based on speculation and LOH records. Father's argwnent simply ignores that Dr. Crowell
and her team conducted a separate exam of Child, met with Child's parents and even ordered
new X-rays, in addition to reviewing LGH records. To be clear, while the Court did find Ms.
Garber's testimony and the LGH records credible, it did not rely solely on the statements
provided by Ms. Garber in rendering its opinion. The Court relied on the totality of the
substantial medical evidence concerning the child's injuries. "Substantial evidence" is defined
under 23 Pa. C.S. §6303 as "evidence which outweighs inconsistent evidence and which a
reasonab]e person would accept as adequate to support a conclusion." The totality of the credible
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and relevant medical evidence in this record is compelling and outweighs the inconsistent and
inconclusive testimony received from the parents.
Based upon the evidence presented and having resolved all issues of credibility, the Court
found for the above stated reasons, that the Agency established by clear and convincing evidence
that B.L. was an abused child and that B.L. is a dependent child. Furthermore, the record
establishes that the Parents were the perpetrators of his abuse. All issues raised by Mother and
Father in their respective 1925(b) statements have been fully addressed. The Court's
determination that the Agency met its burden and the Order of Adjudication and Finding of
Abuse should be affirmed. The Clerk of Courts is directed to transmit the record to the Superior
Court.
BY THE COURT:
Date: ~
.
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' 2otG,
ATTEST:
I certify this document to be filed
in the Lancaster County Office of
o+l the Clerk of the Courts.
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Copies to: David Natan, Esq.
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. . ~lbert J. Mei~ri.~.q. _
Patricia Dunlevy-Williams, Esq.
John P. Stengel, Esq.~
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Children and Youth Agency (2) 'l;._,,t~~...;.~~,,,~ Jacquelyn E. Pfurs1ch
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J ,. J.., 1, Father ~v,..).e..
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