In the Interest of: J v. Appeal of: A.D.

J-S28001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.V., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.D., NATURAL MOTHER :
:
:
:
:
: No. 309 MDA 2020
Appeal from the Dispositional Order Entered January 15, 2020
In the Court of Common Pleas of Lycoming County Juvenile Division at
No(s): CP-41-DP-0000001-2020
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 14, 2020
A.D. (“Mother”) appeals the order of adjudication and disposition
entered on January 15, 2020, which finds, inter alia, that she perpetrated child
abuse against her infant son, J.V.1 We affirm.
J.V. was born in October 2019. The juvenile court summarized the
procedural and factual history that began approximately two months later:
On the morning of December 4, 2019, at approximately
7:52 a.m., Mother contacted 911 and reported that [J.V.] was
unresponsive. [J.V.] was first rushed to Jersey Shore Hospital,
and then taken to Geisinger Medical Center by life flight and there
admitted to the pediatric intensive care unit (“PICU”). [J.V.]’s
treating physician made initial findings of retinal hemorrhage and
brain swelling [rib fractures] and expressed concern that the
injuries appeared to result from non-accidental trauma. Mother
and [Father] were subject to questioning by both police and a
Lycoming County Child and Youth Services (“CYS”) caseworker on
the evening of December 4. Thereafter, on January 2, 2020, [J.V.]
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1The juvenile court also found that T.V., the father of J.V., perpetrated child
abuse. N.T., 1/15/20, at 47-48. Father did not appeal.
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was transferred from the PICU to the children’s unit, where his
supervision by medical staff decreased, allowing his parents to
regain direct care and access.
On January 3, 2020, . . . CYS commenced the instant action
by filing . . . a petition seeking that [J.V.] be placed in protective
custody at Geisinger Medical Center, as the parents were subject
to ongoing criminal and Child Protective Services (“CPS”)
investigations. On the same date, the court granted an order for
emergency protective custody, pending a full hearing. Following
an evidentiary hearing held January 6, 2020, the court issued a
recommendation for shelter care, finding it in the interest of the
welfare of the child. The court granted CYS legal and physical
custody of [J.V.], with contact by the parents limited to supervised
visits.
A dependency hearing was thereafter held on January 15,
2020, at which the court considered CYS’s dependency petition
alleging that [J.V.] was a victim of child abuse as defined at 23
Pa.C.S. § 6303, and CYS’s motion for finding of aggravated
circumstances. Following the dependency hearing, at which both
parents were present and represented by counsel, the court
issued an order of adjudication and disposition entering a finding
of abuse and holding that [J.V.] was a dependent child. The court
additionally made an aggravated circumstances finding under 42
Pa.C.S. § 6302, determining that [J.V.] had been a victim of
physical abuse resulting in serious bodily injury, sexual violence,
and/or aggravated neglect perpetrated by both parents.
Juvenile Court Opinion, 3/10/20, at 2-3 (footnotes and unnecessary
capitalization omitted).
On February 14, 2020, Mother filed a timely notice of appeal from the
adjudication and disposition and a concise statement of errors complained of
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on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 2 She presents three
issues for our review:
1. Whether the [juvenile] court erred in making a finding of abuse
as defined at 23 Pa.C.S. § 6303 against [Mother] as there is no
evidence Mother harmed the child[?]
2. Whether the [juvenile] court erred in making a finding of abuse
as defined at 23 Pa.C.S. § 6303 against [Mother] as there was no
evidence [Mother] observed or was aware of any harm being done
to the child[?]
3. Whether the [juvenile] court erred in granting the Agency’s
motion for a finding of aggravated circumstances as it pertains to
[Mother] as there is no evidence [Mother] abused the child[?]
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2 Although Mother conflates the two orders in the argument section of her
brief, Mother did not appeal the finding of aggravated circumstances, which is
a collateral order appealable as of right. See In re R.C., 945 A.2d 182, 184
(Pa.Super. 2008). Thus, that order is not before us. See e.g., Interest of
M.H., 1286 EDA 2019, 2019 WL 6716291, at *2 (Pa.Super. 2019) (observing,
“Mother did not appeal the aggravated circumstances order, but timely filed
the instant appeal regarding the adjudication and dispositional
order.”); Pa.R.A.P. 126(b)(2) (“Non-precedential decisions [filed after May 1,
2019] may be cited for their persuasive value”).
To the extent that we would confront the merits of the order finding
aggravated circumstances against Mother, we would affirm it for the reasons
cogently explained by the juvenile court,
The [c]ourt may find aggravated circumstances when “the child or
another child of the parent has been the victim of physical abuse
resulting in serious bodily injury, sexual violence or aggravated
physical neglect by the parent.” The severity of [J.V.]’s injury and
the likelihood that those injuries will be permanent justified a
finding of physical abuse resulting in serious bodily injury and the
entry of the Aggravated Circumstances Order.
Juvenile Court Opinion, 3/10/20, at 7 (footnotes omitted).
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Mother’s brief at 7.3
We review the juvenile court’s determination of abuse for an abuse of
discretion. In the Interest of J.M., 166 A.3d 408 (Pa.Super. 2017). As the
alleged abuse occurred in December 2019, the current version of the Child
Protective Service Law (“CPSL”), which became effective on June 12, 2018,
controls our review. The statute defines child abuse, in relevant part, as
follows:
(b.1) Child abuse.--The term “child abuse” shall mean
intentionally, knowingly or recklessly[4] doing any of the following:
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3J.V.’s guardian ad litem, Angela Lovecchio, Esquire, mailed a letter to this
Court stating that she did not intend to file a brief.
4 The CPSL refers to 18 Pa.C.S. § 302 with respect to the definitions of
intentionally, knowingly, and recklessly. 18 Pa.C.S. § 302(b) provides as
follows:
(1) A person acts intentionally with respect to a material element
of an offense when:
(i) if the element involves the nature of his conduct or
a result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(2) A person acts knowingly with respect to a material element
of an offense when:
(i) if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
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(1) Causing bodily injury to a child through any recent
act or failure to act.
....
(8) Engaging in any of the following recent acts:
....
(iii) Forcefully shaking a child under one year of age.
....
23 Pa.C.S. § 6303(b.1) (footnote omitted). Bodily injury is defined as
“[i]mpairment of physical condition or substantial pain.” 23 Pa.C.S.
§ 6303(a).
In In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.Super. 1993),
we explained that, pursuant to the doctrine of incorporation, the Juvenile Act’s
definition of dependent child subsumed the definition of child abuse outlined
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(ii) if the element involves a result of his conduct, he
is aware that it is practically certain that his conduct
will cause such a result.
(3) A person acts recklessly with respect to a material element of
an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.
18 Pa.C.S. § 302(b).
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in the CPSL. Thus, we stated the two laws “must be applied together in the
resolution of child abuse complaints.” Id. at 1023. We reasoned,
The Legislature intended a detailed and specific definition of abuse
to leave no doubt as to the capacity of the trial court, which in this
case can only be the Juvenile Court, to make a finding and
determination that a child has been abused. In its capacity as a
trial judge, the Juvenile Court judge will look and must look to the
above definition of child abuse in a case referred by the child
protective service agency to the Court under petition for review of
dependency when child abuse has been alleged.
Id.
In addition to establishing the pertinent definition of child abuse, the
court in J.R.W. also stressed that the juvenile court’s determination of
whether child abuse occurred must be supported by clear and convincing
evidence. Id.
[T]he clear and convincing evidence necessary to find
dependency, [sic] has been imposed by the Legislature as the
standard which the Juvenile Court must apply in deciding abuse
cases. . . . There is no conflict, constitutional or otherwise, with
the clear and convincing evidence standard imposed by the Act to
establish child abuse.
Id.; see also In re L.Z., supra at 1174.
Moreover, 23 Pa.C.S. § 6381 provides, in part:
(d) Prima facie evidence of 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.
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Mother argues that the juvenile court erred finding Mother a perpetrator
of abuse because CYS did not present evidence that she abused J.V., or that
she observed or was aware of any abuse of J.V. Mother’s brief at 16-18.
Mother asserts that the juvenile court’s determinations as to abuse were
incorrectly based on both Mother and Father caring for J.V. at the relevant
time, neither admitting responsibility for J.V.’s injuries, the extremely small
nature of Mother’s and Father’s residence, and Father yelling to rouse J.V. Id.
at 16. Mother instead maintains that she stated that she was sleeping and
that Father stated that he was caring for J.V. at the relevant time. Id. at 16.
Mother continues with her argument suggesting that Father further stated that
he shook J.V. in an effort to wake him and that there is no evidence that she
was aware of these actions. Id. at 16-17. Distinguishing the instant matter
from In re L.V., 209 A.3d 399 (Pa.Super. 2019), where the mother noticed
physical injury to the child and awaited an upcoming medical appointment,
Mother states, “The testimony appears to point to someone else having caused
the injuries other than [Mother] and there is no testimony which shows she
caused or knew of the injuries and then failed to provide medical care.” Id.
at 17.
In finding J.V. was the victim of child abuse, the juvenile court reasoned:
The [CPSL] defines “child abuse,” in relevant part, as
follows: “Causing bodily injury to a child through any recent act
or failure to act. . . . Forcefully shaking a child under one year of
age.” While the existence of child abuse must be proven by clear
and convincing evidence, in certain circumstances the identity of
the abuser may be established by prima facie evidence:
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[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 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.V., 127 A.3d 831, 837-38 (Pa.Super. 2015)]
This presumption is specifically applicable when multiple
potentially responsible caregivers are involved, as those
caregivers will often “circle the wagons” or alternatively point
fingers at each other. Due to the pendency of criminal charges,
both parents declined to testify at the Dependency Hearing, and
consequently offered no evidence rebutting this presumption.
Therefore, the [c]ourt found that [J.V.] had suffered abuse
at the hands of Mother, because [J.V.] suffered injuries while in
the care of Mother and Father, and because [J.V.]’s injuries would
not have occurred except for the acts or omissions of Mother and
Father. Dr. Bruno’s testimony regarding the likely cause of [J.V.]’s
constellation of injuries established by clear and convincing
evidence that [J.V.]’s injuries were not accidental, but instead the
result of abuse. These injuries include rib fractures, retinal
bleeding, bleeding and swelling in the subdural and subarachnoid
hemispheres of the brain, ventricle bleeding, and a loss of
differentiation between white and gray matter cells within the
brain, resulting in potentially irreversible brain damage.
Additionally, it is undisputed that Mother and Father were the sole
caregivers during the period when the abuse occurred. Ms.
Spagnuolo’s summation of Mother and Father’s separate reports
regarding the night of December 4 indicates that either parent
would have had opportunity to commit the abuse. As neither
parent offered rebuttal testimony, the [c]ourt finds that CYS
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established a prima facie case that Mother and Father were the
perpetrators of abuse.
Juvenile Court Opinion, 3/10/20, at 6-7 (footnotes omitted).
The certified record supports the juvenile court’s finding of abuse as
perpetrated by Mother. See 23 Pa.C.S. § 6303(b.1); 23 Pa.C.S. § 6381. The
record reveals that J.V. suffered significant physical injury while in the
exclusive care of Mother and Father. Critically, Pat Bruno, M.D., a member of
the pediatric child abuse team at Geisinger Medical Center, testified that J.V.
presented subsequent to cardiac arrest and suffered bilateral retinal and
subjunctival bleeding and bruising, swelling, bleeding, pressure on the brain,
as well as swelling to the neck, and fractures to the first rib. N.T., 1/15/20,
at 8-10, 14; Exhibit 1. Specifically, J.V. experienced bleeding between the
layer of tissue surrounding the brain and the inner layer of the brain, as well
as intraventricular bleeding in the brain. Id. at 9. Additionally, the swelling
was so extensive that the back portion of J.V.’s brain was herniating through
an opening in the back of the skull, the foramen magnum, and there was also
a loss of differentiation of the white and grey matter in the brain. Id. at 9-
10.
Moreover, Dr. Pat Bruno, opined that the foregoing injuries were not-
accidental in nature. Id. at 13-14, 19; see also N.T., 1/15/20, Exhibit 1.
The following exchange occurred at the dependency hearing,
Q. Okay. Now, Doctor, I’m gonna ask you if you have an opinion
whether or not the injuries you just testified to regarding [J.V.],
whether they were accidental or non-accidental in nature?
A. They were non-accidental in nature.
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Q. And can you tell us why you have that opinion, what your basis
is?
A. My basis is the constellation of findings with this child, the
fracture of the ribs, the access of – multiple areas of bleeding in
the brain, the subarachnoid, the subdural, the swelling of the
brain, the bleed into his ventricles, the damage to his brain, the
gray matter/white matter issue that I discussed with you.
The constellation of injuries in a child that was, otherwise,
relatively healthy, did have some feeding issues but otherwise
relatively healthy prior to this, this constellation of injuries can be
explained by non-accidental trauma.
Id. at 13-14. Dr. Bruno noted that the injuries were acute and would have
caused immediate signs and symptoms. Id. at 10-11, 17. He further
explained, “Those injuries would have occurred . . . immediately prior to one
or both of the parents noting th[e] change in the child’s behavior.” Id. at 18-
19. In turn, Dr. Bruno further opined that the injuries suffered by J.V.
constituted physical abuse. Id. at 14.
Further, as to the extent of the injury to J.V., the records from Geisinger
Medical Center note a “severe, un-survivable injury” without indication for
neurosurgical intervention. N.T., 1/15/20, Exhibit 1. Dr. Bruno testified that
J.V. was no longer exhibiting higher cerebral functioning, and that such
cerebral injury was likely irreversible. On direct examination, Dr. Bruno
stated:
There’s very little motion. [J.V.] does have some movement
of his arms and legs; but they said that the reflexes he has are
very primitive, brain-stem-type of reflexes. . . .
And so the indication was that they were concerned that
there weren’t any areas of higher functioning, cerebral-type
functioning going on. They indicated that what they saw with him
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as far as activity, he’s got . . . a gag reflex; and he has
spontaneous respirations. But they indicated that these were
probably brainstem functions that we were seeing.
He did have an EEG. He has had quite a few EEG’s, and at
least one of them has indicated that here was very little electrical
activity as far as the cerebrum was concerned. So, you know he
suffered, you know, a devastating anoxic injury and probably most
of these injuries, at least in the cerebral area, are not gonna be
reversible. It’s hard to say, you know, for sure. But that’s what
the neurologists are saying, that some of this change is gonna be
irreversible.
Id. at 13.
Elizabeth Spagnuolo, a caseworker in the CYS Assessment Unit, testified
that both Mother and Father were the sole caregivers of J.V. during the
relevant period of time and neither offered any real explanation as to how J.V.
became injured. Id. at 24-26, 29. Instead, they proffered that J.V.’s primary
pediatric physician, who had been seeing J.V. approximately every three days
due to a failure to gain weight, perhaps missed something. Id. at 26, 31-32.
Moreover, their inconsistent accounts of the morning led Ms. Spagnuolo to
believe that they were not being entirely honest. Id. at 29. She observed
that, while Father reported shouting in an attempt to wake his nonresponsive
son, Mother indicated that she did not hear anything unusual prior to finding
the child at 7:45 a.m. Id. Ms. Spagnuolo further observed that, based upon
the fact that the family’s apartment is “quite small,” both Mother and Father
would have been aware of what was going on . . . or at least been able to give
more information of what occurred that evening then – or that morning than
what they had.” Id. at 29-30.
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As confirmed by the forgoing evidence, the certified record supports the
juvenile court’s finding of abuse pursuant to 23 Pa.C.S. § 6303(b.1), as
perpetrated by both Mother and Father. Accordingly, we do not disturb it.
Given the clear and convincing evidence adduced during the hearing, Mother’s
claim that she did not abuse J.V., and was not aware of any abuse, strains
credulity. That medical assistance was sought quickly after the physical abuse
was inflicted does not detract from the court’s finding. Accordingly, we affirm
the juvenile court’s order of adjudication and disposition finding child abuse.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/14/2020
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