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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.B., FATHER
No. 341 MDA 2016
Appeal from the Order Entered January 29, 2016
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000220-2015
IN THE INTEREST OF: J.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.R., MOTHER
No. 342 MDA 2016
Appeal from the Order Entered January 29, 2016
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000220-2015
BEFORE: BENDER, P.J.E., PANELLA, J. and STEVENS, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 31, 2016
M.B. (Father) and A.R. (Mother) each appeal from the trial court’s
January 29, 2016 orders finding that aggravated circumstances existed as to
both Father and Mother with regard to the abuse of J.B. (Child), born in
August of 2015. The court noted that Child was deemed to be a dependent
child, that he had been the victim of physical abuse that resulted in serious
bodily injury, and that Mother and Father were the perpetrators.1 After
review, we affirm.
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1
We consolidate Father’s and Mother’s appeals for disposition purposes in
that the cases were dealt with together below and the orders and opinions
supporting those orders were identical.
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In an addendum to its aggravated circumstances orders, the court
explained the facts of the case and its reasons for its conclusions, stating:
On October 17, 2015, [J.B.] (hereinafter “Child”) was treated by
the Lancaster General Hospital Emergency Department with a
bump on the back of his scalp. [A.R.] (hereinafter "Mother") and
[M.B.] (hereinafter “Father”) were present with the Child at the
hospital. At that time the Mother indicated that the Child rolled
over and struck his head on a metal bar in the bassinet while
sleeping. This explanation for the injuries was deemed
implausible by Hospital Staff.
The Child was then transported to Hershey Medical Center where
it was discovered that the Child had a skull fracture. The
Mother’s explanation as to the Child doing this to himself was
refuted by Dr. Kent P. Hymel, MD[]1 as the Child does not have
the dexterity necessary to cause a skull fracture to himself.
1
Dr. Hymel is a Child Abuse Pediatrician, and
testified as an expert in Child Abuse during the
hearing.
In a follow-up exam[,] it was found that the Child also had a
compression fracture of the 11th thoracic vertebrae. Dr. Hymel
indicated that this sort of injury would only be caused by using
significant force to slam the Child down, or by having the Child
fall directly on his bottom from a high location.
Child abuse occurs when a person intentionally, knowingly, or
recklessly causes impairment of physical condition or substantial
pain to a child through any recent act or failure to act. Based on
the testimony of Dr. Hymel it is clear that the multiple injuries
sustained by the Child could not have been self-inflicted. It is
also clear that these injuries could not have occurred except for
the acts or omissions of the Mother and Father. Mother and
Father did not provide convincing alternative explanations for the
skull fracture and compression fracture of the thoracic vertebrae
that the Child suffered while in their care.
A perpetrator of abuse includes a parent of the child who has
committed child abuse. Aggravated [c]ircumstances exist when
“the child or another child of the parent has been the victim of
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physical abuse resulting in serious bodily injury, sexual violence
or aggravated physical neglect by the parent.”
The Court finds by clear and convincing evidence that the Child
is an abused child, and that Mother and Father were the
perpetrators. Aggravated circumstances exist.
Aggravated Circumstances Orders, 1/29/16, Addendum (some footnotes
omitted). Based on this determination, the court continued Child’s
placement with a family member, and directed that efforts to reunify the
family were to continue with a permanency review to be held in six months.
Both Father and Mother filed timely appeals and concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). 2
Father’s brief contains the following two issues:
A. Whether the [c]ourt erred when it found aggravated
circumstances existed as to Father.
B. Whether the [c]ourt erred when it determined Father was the
perpetrator of abuse against the child.
Father’s brief at 6. Likewise, Mother’s brief contains two issues, which are
stated as follows:
I. Whether the [c]ourt erred when it concluded that there was
clear and convincing evidence presented to establish that
aggravated circumstances exist as to Mother.
II. Whether the [c]ourt erred in concluding that it was proven
that Mother committed physical abuse resulting in serious bodily
injury or aggravated neglect to the child.
Mother’s brief at 6.
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2
Neither parent appealed from the dependency orders.
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We begin by noting that our “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.” In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015). We
review for abuse of discretion….” Id.
Both parties argue that insufficient evidence exists in the record to
prove that they were the perpetrators of the abuse suffered by Child and
that aggravated circumstances existed.
The relevant portion of Section 6303 of the Child Protective Services
Law (CPSL)3 defines “child abuse” as “intentionally, knowingly or recklessly
… [c]ausing bodily injury to a child through any recent act or failure to act.”
23 Pa.C.S. § 6303(b.1)(1). The existence of “child abuse” must be proven
by clear and convincing evidence. See L.Z., 111 A.3d at 1174. However,
depending on the circumstances, the identity of the abuser may be
established by prima facie evidence. Id.
[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
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3
Section 6303 was amended, effective December 31, 2014, and includes a
revised definition of “child abuse” that is applicable to the present case
because Child’s injuries occurred after the effective date of the amendments.
See 23 Pa.C.S. § 6303(b.1).
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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[’s]
evaluating the credibility of the prima facie evidence presented
by the CYS agency and the rebuttal of the parent or responsible
person.
Id. at 1185 (footnote omitted). See also 23 Pa.C.S. § 6381(d) (“Prima
facie evidence of abuse”).4
The trial court did not abuse its discretion by determining that Child
suffered abuse due to Father’s and Mother’s acts and/or omissions. The
court discussed its recognition that Father and Mother made contradictory
statements to Dr. Hymel, to the caseworker from the Agency, and to law
enforcement officers “investigating the matter as to how their two month old
baby suffered a skull fracture, swelling of the scalp, bleeding under the skull,
and a spine fracture.” Trial Court Opinion (TCO), 3/28/16, at 4
(unnumbered). The court then discussed the three possible explanations
provided by testimony at the hearing, but the court concluded that none
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4
Section 6381 provides that:
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).
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were “credible or persuasive rebuttal evidence to the presumption of
responsibility for the abuse.”5 After our review of the record, we conclude
that it supports the court’s conclusion that Father and Mother committed
child abuse pursuant to Section 6303(b.1)(1).
We now turn to the parties’ allegation that the evidence of record did
not establish that aggravated circumstances existed. The trial court
explained its reasoning as follows:
Aggravated Circumstances exist when “[t]he 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.” (42 Pa.C.S. § 6302) Serious
Bodily Injury is defined as “bodily injury which creates a
substantial risk of death or which causes serious permanent
disfigurement or protracted loss or impairment of the function of
any bodily members or organ.[”] (42 Pa.C.S. § 6302) The
statutory standard requires that the court find that abuse
occurred, that it was inflicted by a parent, and that it is a serious
bodily injury. For the reasons set forth in the previous section,
this [c]ourt is convinced that Mother and Father were the
perpetrators of the abuse.[6] The only remaining issue is whether
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5
One explanation suggested Child’s paternal grandmother with whom
Mother and Father lived was the responsible party because she may have
been drinking when caring for Child. A second explanation considered by
the court was directed at a parent’s cousin who cared for Child for about an
hour, three or four days before Child was taken to the hospital. The third
explanation concerned Mother’s statement to a law enforcement officer that
Child had rolled off an air mattress or off Mother’s chest on two occasions.
See TCO at 4-5.
6
Specifically, the trial court discussed the testimony it found credible and
upon which it relied, stating in its opinion:
(Footnote Continued Next Page)
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or not the injuries suffered by the child amounted to serious
bodily injury. As the record clearly demonstrated, this two
month old infant suffered a fractured skull, swelling of the scalp,
bleeding under the skull, and a fractured spine. Dr. Hymel
testified that both injuries were painful. (N.T. 01/21/2016, [at]
15) Due to the severity of the injuries, and the lack of a credible
explanation, this [c]ourt determined that [Child] suffered a
serious bodily injury. The explanations given by [Child’s]
parents, insofar as they could be gleaned from indirect reporting,
lacked all credibility. These excuses were plentiful, disjointed,
and insufficient to explain the serious injuries. Therefore,
aggravated circumstances exist as to the Mother and the Father.
TCO at 5-6.
Based upon the findings by the court, which are supported by the
evidence of record, we conclude that aggravated circumstances existed
pursuant to 42 Pa.C.S. § 6302(2). Accordingly, Father’s and Mother’s issues
are without merit and we affirm the trial court’s orders.
Orders affirmed.
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(Footnote Continued)
Dr. Hymel, the examining physician made it clear that the
multiple injuries sustained by [Child] could not have been self-
inflicted, and that these injuries could not have occurred except
for the acts or omissions of the adult responsible for him. (N.T.
01/21/2016, [at] 12) Both Mother and Father are on the birth
certificate and served as the responsible parties overseeing
[Child.] ([I]d. at 43, 70) There was a finding of abuse against
[Child], and the Mother and Father are the parents and the
responsible parties.
TCO at 3.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2016
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