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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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?
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(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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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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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 a