In the Int. of: A.M., Appeal of: T.B.

J-A20033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF A.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.B., MOTHER :
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: No. 904 EDA 2022
Appeal from the Order Entered February 28, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001137-2020
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022
T.B. (Mother) appeals an order of the Court of Common Pleas of
Philadelphia County Juvenile Division (trial court) adjudicating her biological
child A.M. (Child) dependent due to child abuse perpetrated by Mother. 1
Although Mother does not dispute the finding of dependency, she does
challenge the finding of child abuse in two respects. She contends that the
trial court committed an error of law and abused its discretion in discounting
Mother’s evidence that no child abuse had occurred and in separately finding
that Mother was the perpetrator of the abuse. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 The trial court had also found that K.M. (Father) had perpetrated child abuse,
but Father is not a party to this appeal, and the trial court’s findings relating
to Father are not now at issue.
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I.
A.M. was born in August 2020.2 Mother and Father have been the
primary caregivers since Child’s birth. According to Mother and Father, they
began noticing on September 7, 2020, that Child was having difficulty eating
and she had also been vomiting. Additionally, Child had been screaming for
several days due to discomfort from an unknown cause. Both that day and
the following day, Mother took Child to Holy Redeemer Hospital to be
evaluated. Each time, according to Mother and Father, Child was discharged
once she was able to successfully breastfeed. On the morning or afternoon of
September 9, 2020, Mother took Child to a pediatrician to determine whether
an injury was causing the child discomfort, but again, according to Mother and
Father, no such trauma was identified at that point.3
Later, on September 9, 2020, at about 7:00 p.m., Mother left Child with
her maternal aunt. Father then picked Child up that evening between 8 p.m.
and 9:30 p.m. and took Child to his house. When Father attempted to put
Child to bed, he noticed that her pacifier had fallen out of her mouth, her left
arm was stiff and her eyes were droopy. Child seemed to be unresponsive
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2 The following facts are gleaned from the certified record and the findings of
the trial court which were outlined in its opinion. See Trial Court Opinion,
4/22/2022, at 1-14.
3None of physicians who treated A.M. on September 8 and 9, 2020, testified
at the subject hearings, and the information given by Mother and Father as to
what happened on those dates was not corroborated by any other sources.
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and at about midnight, after consulting with other relatives, Father took Child
to the Nazareth Hospital Emergency Department.
Treating physicians noted that Child was having seizures and breathing
difficulties. She was diagnosed with brain hemorrhages and given medication.
She was also intubated and placed on a ventilator. On September 10, 2020,
Child was transferred to the intensive care unit of the Children’s Hospital of
Philadelphia (CHOP).
When admitted to CHOP, Child was nonresponsive and it was found that
her breathing tube had become clogged. Child then had to be resuscitated.
She was soon diagnosed with seizures stemming from multiple hemorrhages
in and around her brain and eyes. The treating physicians had classified
Child’s case as a “near fatality” because she had required life-saving medical
intervention. See Trial Court Opinion, 4/22/2022, at 20.
The Philadelphia Department of Human Services (DHS) received reports
from Child Protective Services (CPS) on September 10, 2020, describing
Child’s physical condition. CPS expressed concern that Child had suffered
from non-accidental trauma due to the acute nature of the injuries and the
fact that Child’s parents could not explain how the injuries had been sustained.
The trial court held hearings on August 31, 2021, December 1, 2021,
February 8, 2022, and February 28, 2022, to determine if Child was indeed
the victim of child abuse and whether she should be adjudicated dependent.
DHS called one of Child’s treating physicians, Dr. Colleen Bennett, as an expert
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witness on the subject of child abuse pediatrics. According to Dr. Bennett,
Child was diagnosed with numerous and severe hemorrhages around her
brain, as well as multiple retinal hemorrhages around both eyes. See Hearing
Transcript, 8/31/2021, at pp. 29-32. In Dr. Bennett’s opinion, the most
common cause of such hemorrhages in children of Child’s age is trauma. Id.
at pp. 34-36. Dr. Bennett testified further that Child was incapable of causing
these injuries herself, and that the severity of Child’s injuries was consistent
with child abuse and inconsistent with accidental trauma. CHOP had used a
number of tests to rule out other causes of Child’s injuries, such as cancer,
infection, a bleeding disorder and a metabolic disorder. Id. at pp. 36-37.
Dr. Bennett testified that Child’s discomfort and eating difficulty in the
days prior to her hospitalization could have been related to the seizure and
the hemorrhages, but that she could not determine this with a reasonable
degree of medical certainty. However, the extent of the bleeding in and
around the hemorrhages, as well as the acute nature of Child’s injuries,
demonstrated to Dr. Bennett to a reasonable degree of medical certainty that
the injuries had occurred within “days to a week” of Child’s hospitalization,
and that Child’s condition was caused by non-accidental trauma and child
abuse. Id. at pp. 62-63. Dr. Bennett testified that it was impossible to
pinpoint a more specific time in which Child had sustained the acute injuries
causing the hemorrhages.
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Mother’s rebuttal evidence came in the form of her own testimony and
the testimony of Dr. Joseph Scheller, a pediatric neurologist who was qualified
by the trial as expert. See Hearing Transcript, 12/1/2021, at 14. Unlike Dr.
Bennett, it was Dr. Scheller’s opinion that Child’s injuries could have been the
result of complications from birth-related trauma rather than recent acute
trauma inflicted by child abuse. Id. at p. 50. Dr. Scheller testified that if
Child had partially-healed brain bleeds from the birth process, they could have
been accidentally reopened, causing the current symptoms Child presented
with. Moreover, Dr. Scheller opined that Child’s brain injuries could not be
accurately dated, and that it could not be determined whether they had
resulted from recently inflicted or non-accidental trauma. Id. at pp. 61-62.
After hearing argument, the trial court ruled that DHS had met its
burden of presenting clear and convincing evidence that Child was dependent,
and that Child was a victim of non-accidental trauma, warranting findings of
child abuse against Mother and Father. The trial court explained that Child
was in the “primary care and control of Mother and Father during the time the
injuries were discovered” and that “[n]o evidence was presented to refute that
Mother and Father were Child’s primary caretakers when she sustained these
near-fatal injuries.” Trial Court Opinion, 4/22/2022, at 21.
With respect to the nature of Child’s physical condition, the trial court
found Dr. Bennett’s testimony more “credible and compelling” than Dr.
Scheller’s. Id. at 18. Significantly, the trial court also stressed that neither
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parent had provided any explanation as to how Child was so severely injured
while in their care.
Mother timely appealed the trial court’s finding that Child was a victim
of child abuse and that Mother was a perpetrator of that abuse. Mother now
argues in her appeal that (a) the trial court relied on conjectural evidence of
child abuse while failing to consider Mother’s rebuttal evidence that no abuse
occurred, and (b) the trial court failed to consider rebuttal evidence showing
that even if Child were abused, Mother could not have been the perpetrator
because Child was not in her care at the relevant times. See Appellant’s Brief,
at 5.4
II.
A.
Mother’s first claim is that the trial court abused its discretion in
determining that Child was the victim of child abuse.5
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4
Mother had raised two other issues in her 1925(b) statement, but they were
later withdrawn as moot. See Appellant’s Brief, at 5-6. Separate briefs were
filed on behalf of Child and DHS and Father did not file a brief since he is not
a party to this case.
5 A trial court’s findings as to a petition to terminate parental rights are
reviewed under an abuse of discretion standard. See In the Interest of
J.D., 798 A.2d 210, 213 (Pa. Super. 2002). The reviewing court must accept
the findings of fact and credibility determinations of the trial court as long as
they are supported by the record. See In re R.J.T., 9 A.3d 1179, 1190 (Pa.
2010). “An abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
(Footnote Continued Next Page)
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Under 23 Pa.C.S. § 6381(d), there is a rebuttable presumption that child
abuse has occurred where a child has been injured in some way that would
not “ordinarily” occur but for an instance of child abuse:
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 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 also See Interest of A.C., 237 A.3d 553, 562
(Pa. Super. 2020) (The statutory presumption applies where a dependency
petitioner can show that the child’s injury would not ordinarily have been
sustained but for the acts or omissions of the respondent).
Once a court applies this presumption, the burden shifts to the parent
or caregiver to show that the injuries sustained by the child were not the result
of child abuse. See In re L.Z., 111 A.3d 1164, 1185 (Pa. 2015). The
“[e]valuation of the validity of the presumption . . . then rest[s] with the trial
court evaluating the credibility of the prima facie evidence [of abuse] and the
rebuttal of the parent or responsible person.” Id. For these purposes, child
abuse is defined as “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. § 6303(b.1).
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unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.
2007).
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Here, contrary to Mother’s claim, the trial court properly applied the
statutory presumptions of Section 6381 and acted within its discretion in
weighing the conflicting evidence of child abuse:
[The trial court] determined that its finding of child abuse as to
Mother was supported by clear and convincing evidence and that
A.M. was without proper care and control. Ultimately, this
Court’s decision to find child abuse as to Mother rested on
which expert witness the Court found more credible. This
Court found Dr. Bennett’s testimony more credible and compelling
than Dr. Scheller’s testimony. Dr. Bennett and the CHOP team
were the treating physicians for A.M. when she arrived at the
hospital on September 10, 2020, and they had direct knowledge
of the injuries she sustained. Dr. Bennett evaluated A.M.,
reviewed her medical history and records from Nazareth, and
conducted interviews with A.M.’s parents in preparation for her
consultation report. Dr. Scheller did not evaluate A.M., nor did he
speak to physicians at Holy Redeemer, Nazareth, CHOP, or any
family members. Dr. Bennett credibly testified that A.M.
sustained numerous, severe, near-fatal injuries. These injuries
included acute bilateral subdural and subarachnoid hemorrhages
as well as acute, severe, multi-layer retinal hemorrhages that
were “too numerous to count.” A.M. also suffered seizures and
required life-saving intervention such as seizure medications and
intubation with a ventilator as a result of these near-fatal injuries.
Trial Court Opinion, 4/22/2022, at 18-19 (emphasis added).
As to Mother’s rebuttal evidence that no child abuse occurred, the trial
court found it significant that Dr. Bennett had disputed Dr. Scheller’s
conclusions on several grounds:
. . . Dr. Bennett credibly testified that [A.M.’s] injuries were not
caused by a pre-existing condition arising from a complication at
birth as Dr. Scheller suggested. A.M. was not diagnosed with pre-
existing conditions at birth nor by any physicians who treated her
since birth. Dr. Bennett stated that if A.M.’s injuries were the
result of birth trauma, she would have been symptomatic for these
injuries prior to five weeks after she was born. Additionally, if
A.M.’s retinal hemorrhages were the result of a traumatic birth,
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they would have healed by the time A.M. presented at CHOP.
A.M.’s hemorrhages were also toward the front of the brain,
whereas birth-related trauma typically results in hemorrhages
toward the back of the brain, which makes the injuries more
consistent with inflicted trauma. Dr. Bennett further testified
within a reasonable degree of medical certainty that A.M.’s injuries
occurred within “days to a week” prior to her admission to CHOP
on September 10, 2020. While Dr. Scheller presented a thorough
explanation of how he believed A.M. sustained these injuries, the
medical evidence demonstrates that A.M.’s injuries did not result
from birth trauma but were consistent with nonaccidental trauma
and child abuse.
Id. at 19-20. Moreover, neither Mother nor Father could give any explanation
for how Child had sustained such acute, life-threatening injuries while in their
care. See id. In short, the trial court simply found the evidence of abuse
more credible than the rebuttal evidence provided by Mother. Such
determinations – relating to the credibility of witnesses and the weight of the
evidence – are within the discretion of the trial court, and we find no legal or
factual basis in the record here to suggest that the trial court abused that
discretion in finding that Child was a victim of abuse. See In re L.Z., 111
A.3d at 1185; see also See In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
B.
Mother’s second claim is that the trial court abused its discretion in
determining that Mother was the perpetrator of child abuse against Child. In
her brief, Mother emphasizes that she could not have been responsible for any
child abuse that may have occurred because Child was not directly under her
supervision on the evening in which Child received emergency medical care.
Mother argues that Child was in the care of Father when she first presented
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with a life-threatening medical condition, and that prior to that point, when
Child was in Mother’s custody, Child’s medical condition was not indicative of
child abuse.
After reviewing the record evidence and the trial court’s 1925(a)
opinion, we conclude that the trial court did not abuse its discretion in finding
that Mother was responsible for the abuse of Child. As previously discussed,
under 23 Pa.C.S. § 6381(d), Mother was a caregiver of Child, and since the
trial court relied on competent evidence to rule that child abuse occurred, the
burden rested with Mother to rebut her presumptive responsibility for that
abuse. See Trial Court Opinion, 4/22/2022, at p. 21 (“[T]he evidence clearly
established that Mother and Father were the primary caregivers for A.M. at
the time of her injuries and that A.M.’s injuries occurred while A.M. was in
their primary care.”); see also See Interest of C.B., 264 A.3d 761, 772 (Pa.
Super. 2021) (a child’s caregiver does not have to be physically present with
a child in order to be held liable for an injury that a child sustains).
Here, Mother failed to rebut the presumption that she was responsible
for Child’s acute, non-accidental injuries. Although she claims that any child
abuse would have had to occur when Child was in Father’s custody on the
evening of September 9, 2020, the evidence does not establish that. Mother
did not present the testimony of the physicians who purportedly treated Child
two prior days, and the trial court did not credit Mother’s claims that those
physicians detected no acute injuries at those times.
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Further, both Mother’s expert witness and the expert witness for DHS
testified that it was impossible to determine whether Child had suffered an
acute injury within the narrow timeframe in which Father had physical custody
on the evening in question. In fact, Dr. Bennett testified that Child’s injuries
could have been inflicted between one day and one week from the time Child
was given emergency care on September 9, 2020. The trial court did not
abuse its discretion in crediting Dr. Bennett’s testimony or in finding that
Mother had failed to rebut the presumption that she was responsible for the
child abuse inflicted on Child. See Interest of S.L., 202 A.3d 723, 730 (Pa.
Super. 2019) (It is “within the trial court’s ultimate purview” whether to credit
or reject a caregiver’s rebuttal evidence). Thus, the order on review must
stand.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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