J-A07035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.V., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.H., MOTHER :
:
:
:
:
: No. 1390 EDA 2018
Appeal from the Dispositional Order April 16, 2018
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002253-2016
IN THE INTEREST OF: L.V-H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.H., MOTHER :
:
:
:
: No. 1392 EDA 2018
Appeal from the Dispositional Order April 16, 2018
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002269-2016
BEFORE: LAZARUS, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 09, 2019
Appellant, J.H. (“Mother”), files these consolidated appeals from the
orders entered April 16, 2018 in the Philadelphia County Court of Common
Pleas, adjudicating dependent her son, L.V., born in August 2016, and
daughter, L.V.-H., born in January 2015 (collectively, the “Children”), as well
____________________________________________
* Former Justice specially assigned to the Superior Court.
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as finding L.V. was abused, that aggravated circumstances exist, and that no
efforts need to be made toward reunification. Mother also challenges the trial
court’s partial denial of Mother’s motion for permission to take L.V. for medical
examination (April 5, 2017), its denial of Mother’s motion for reconsideration
of that order (May 17, 2017), and its denial of Mother’s motion for recusal
(December 15, 2017). 1 After careful review, we affirm.
The trial court summarized the relevant factual history as follows:
FINDINGS OF FACT
On October 11, 2016, the Department of Human Services
(“DHS”) received a Child Protective Services (“CPS”) report
alleging that two (2) month old [c]hild[,] L.V. was admitted to the
Children’s Hospital of Philadelphia (“CHOP”) on October 10, 2016
with multiple fractures. In total[,] twenty[-]six (26) fractures
were eventually discovered. . . . Medical staff at CHOP determined
that [] L.V.’s injuries were highly indicative of child abuse. These
fractures were also in various stages of healing. CHOP admitted
[] L.V. to the Trauma Unit where [] L.V. remained for several days.
Mother and Father were unable to explain the causes of [] L.V.’s
fractures. Mother and Father denied that the [c]hild had been
dropped or fallen or left in the care of someone other than Mother
or Father.
***
On October 13, 2016[,] [DHS] obtained an Order of Protective
Custody for [] L.V. and [] L.V.H.[2]. . . On October 21, 2016, DHS
filed the underlying Petition for Dependency and sought a finding
of aggravated circumstances and child abuse against Mother and
Father[.]
Trial Court Opinion (“T.C.O.”), 10/5/18, at 4-5.
____________________________________________
1The Children’s father, J.A. (“Father”) did not appeal any of these matters.
2 The Children initially were placed in kinship care with Maternal Cousin, but
were subsequently placed with Maternal Aunt on December 21, 2016. Notes
of Testimony (“N.T.”), 8/23/17, at 220-21; Continuance Order, 12/21/16.
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On December 5, 2016, the CPS report stated that Mother and Father
had been indicated as perpetrators of abuse based on medical evidence. N.T.,
8/23/17, at 207-208. DHS investigative worker Ashley Wingate testified that
the report was indicated based on “CHOP’s findings that the injuries were
extensive and indicative of inflicted injury. The parents couldn’t offer any
explanation for the injuries or how they occurred. Also, no one else was
caretaker who could have caused the multiple injuries, including new and
healing fractures.” Id. at 219-20.
The trial court conducted adjudicatory hearings on August 23, 2017,
September 11, 2017, December 15, 2017, March 27, 2018, and April 16,
2018. The Children were represented by Beth Kahn, Esquire, and Jalaine
Stokes, Esquire, of the Defenders’ Association Child Advocate Unit. Mother
and Father were present and represented by counsel throughout.
Mother and Father testified on their own behalf as to the events that led
to L.V.’s hospitalization on October 10, 2016. Mother noticed L.V.’s shoulder
swelling on Thursday, October 6, 2016. Mother called the pediatrician on
Friday, October 7, 2016 and was advised there were no doctors available to
see L.V. While the doctor’s office directed Mother to take L.V. to the
emergency room, Mother decided to wait until L.V.’s scheduled pediatric
appointment on Monday, October 10, 2016.
Mother testified that she felt the swelling in L.V.’s shoulder was not a
serious injury as L.V. was not crying. That weekend, Mother felt L.V. was doing
fine and sleeping well, but observed that he had reduced his level of feeding.
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On Monday, before taking L.V. to his appointment, Mother noticed swelling in
L.V.’s leg, but asserted that she never saw any bruises. At this visit, L.V.’s
pediatrician directed Mother to take L.V. to the emergency room, where CHOP
personnel discovered that L.V. had twenty-six fractures.3
Mother claimed she had no reason to believe Father harmed L.V.; she
indicated she always was with the baby as she was on maternity leave and
L.V. was left alone with Father “maybe three, five times.” N.T., 3/27/18, at
153. After the Children were removed from her home, Mother admitted that
she and Father could not “handle … the fact that our kids were taken away,”
and shared that Parents’ marriage experienced a lot of conflict. Id. at 159.
Mother conceded that she filed for a Protection from Abuse (PFA) order against
Father, claiming he threatened to slice her throat. Id. at 159. However,
Mother testified that she had no reason to believe Father injured L.V.
Father gave similar testimony describing the days before L.V.’s injuries
were discovered in the CHOP emergency room. Father admitted seeing L.V.’s
shoulder was swollen on Thursday, October 6, 2016, but corroborated
Mother’s testimony that the pediatrician was not available until the following
Monday morning. Father claimed that he did not see that L.V.’s leg was
swollen as the baby always had clothes on; Father shared that both Mother
____________________________________________
3 Notably, Mother indicated she had taken L.V. to the emergency room at St.
Christopher’s Hospital two weeks earlier on September 16, 2016, at the
direction of the pediatrician, due to discoloration in L.V.’s nails, his vomiting
of formula and breast milk, and a “lump” on his back. However, emergency
room personnel sent Mother home without a diagnosis. Id. at 146-47.
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and Father cared for him. Father indicated that “at no time whatsoever” would
Mother have caused L.V.’s injuries. N.T., 3/27/18, at 180. When asked about
Mother’s claim that he threatened to slice her throat, Father asserted that he
did not use those words. Id. at 181.
The parties offered competing medical expert testimony to attempt to
explain the cause of L.V.’s injuries. DHS first presented the testimony of Dr.
Cindy Christian, a CHOP pediatrician on the Suspected Child Abuse and
Neglect (“SCAN”) team or child protection team, whom the trial court qualified
as an expert in pediatrics and pediatric child abuse. Dr. Christian reported
L.V. presented at the CHOP emergency room in a lot of pain and was not
moving his left leg. L.V. was admitted to the Trauma Service as he exhibited
twenty-six fractures and had to be treated gently. N.T., 8/23/17, at 66. L.V.
had both new and healing fractures of his ribs, metatarsal (foot), tibia (shin
bone), femur (thigh bone), humerus (arm), and acromion (shoulder blade).
Id. at 49-50, 54-59, 66. Dr. Christian stated,
Many of the fractures that we saw were fractures that are
more specific or not seen very frequently in children who have
accidental fractures; more commonly seen in children who have
inflicted fractures.
And I think what was remarkable about [L.V.] was how
many fractures he had when he came into the hospital.
Id. at 64. She noted that shoulder blade and rib fractures are uncommon in
accidental trauma. She noted L.V. had some metaphyseal fractures located
at “the end or the growing portion of the bone,” which were uncommon. Id.
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at 55, 65. Moreover, Dr. Christian reiterated that she never saw the amount
of fractures exhibited instantly as a result of accidental trauma. Id. at 66.
Due to the high number of fractures, Dr. Christian found it necessary to
rule out any underlying disease processes and obtained a consult for metabolic
bone disease. Id. at 70-71. After further testing, Dr. Christian was able to
rule out osteogenesis imperfecta (brittle bone disease), vitamin D deficiency,
and rickets disease.4 Id. at 71-75; see also DHS Exhibit 6. When asked to
evaluate the opinion of Mother’s expert, Dr. Michael Holick, who believes L.V.
has a metabolic bone disease called Ehlers-Danlos syndrome, Dr. Christian
asserted that Ehlers-Danlos syndrome is “not a disease that’s known to cause
multiple fractures in infants, and not a disease that’s associated with fractures
in infants.” N.T., 8/23/17, at 85.
____________________________________________
4 With respect to rickets, Dr. Christian explained that,
Rickets is a metabolic disorder of growing bones where,
because -- most commonly -- there are multiple causes of rickets,
but the most common is vitamin D deficiency.
You need good vitamin D to mineralize your growing bones.
And if you don’t have enough vitamin D, then you can’t lay down
the normal calcium and phosphorus at the ends of your growing
bones.
N.T., 8/23/17, at 76-77. In addition, Dr. Christian reported that L.V.’s vitamin
D level was “insufficient, but sufficient for bone health.” A level is deemed
“deficient” if below 20; L.V.’s level was 23. Id. at 74. A course of vitamin D
supplementation was recommended and instituted. See DHS Exhibit 4.
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Moreover, after Dr. Christian observed abnormal healing of L.V.’s bones
on a second skeletal survey, she obtained a third survey, which revealed no
new fractures and normal healing of existing fractures.5 She explained,
At the time of [L.V.’s] follow-up skeletal survey, which was two or
three weeks after he was hospitalized, when we reviewed the x-
rays and he had some unusual kind of findings on -- as his bones
were healing, in addition to doing genetic testing, I thought that
it might be useful to get yet a third set of skeletal survey because
-- which I don’t normally do.
We always would get a skeletal survey when babies are
initially hospitalized. We often get a follow-up a few weeks after
hospitalization.
But I thought – I knew that [L.V.] was in a different home
environment and that, if I waited a few more weeks and got yet a
third skeletal survey and I saw additional new fractures that I
hadn’t been seeing on the first two skeletal surveys, it would
indicate to me that there was something inherently wrong with his
bones that maybe we were missing with our osteogenesis
imperfecta studies.
I don’t know what that was, but I felt like it was -- it would
tell me that there were -- that there was more testing that we
should think about or -- or do.
And, so, I asked for [L.V.] to have a third skeletal survey.
And, again, Your Honor, I don’t normally do this. And he did have
the third skeletal survey, and there were no new fractures.
So -- and all of the other fractures that he already had were
healing very nicely. And, so, at that time, I didn’t think that
additional testing for genetic diseases was indicated at that time
because, as soon as he came into the hospital, he had no further
fractures.
And in the first two months of life, he had multiple, multiple
fractures. So, if he had a genetic disease that was so terrible that
it broke multiple bones in the first two months of life, it didn’t
seem consistent with then it suddenly -- there were no more
fractures after that.
____________________________________________
5 Three skeletal surveys were obtained on October 11, 2016, October 28,
2016, and on November 17, 2016. N.T., 8/23/17, at 81; DHS Exhibit 5.
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Id. at 79-80. She found that the fact that L.V.’s “third skeletal survey [] didn’t
show ongoing fragility of his bones suggested that he didn’t have a genetic
disease that caused all of the fractures that we saw in the first -- at two
months of age.” Id. at 98. As such, Dr. Christian testified to a reasonable
degree of medical certainty that L.V.’s injuries were “highly concerning for
inflicted or non-accidental trauma.” Id. at 100.
DHS also offered the testimony of Dr. Maria Katherine Henry, a fellow
physician on the child protection team at CHOP, who was qualified without
objection as an expert in pediatrics and child abuse. Dr. Henry concurred that
L.V.’s injuries were “highly concerning for inflicted trauma.” N.T., 8/23/17, at
194. When asked for the basis for this determination, Dr. Henry stated,
So, we based that on the absence of a history of trauma
provided. In addition, we did a medical evaluation, looking at
nutritional bone disease, and did not find significant diseases in
his vitamin D level.
We, in addition, consulted our colleagues in metabolism,
who sent different testing for osteogenesis imperfecta, and that
was negative, as well.
So, it was the absence of a history of any type of accidental
trauma that could explain these findings, and then, in addition, an
absence of a medical cause that was identified to explain his
injuries.
Id. When asked if L.V.’s injuries caused concern, Dr. Henry explained,
So -- yes. We look at the constellation of injuries, and that’s
concerning. And, so, as a whole, his injuries were concerning, but
there were some injuries in isolation that would be concerning for
inflicted trauma.
And those include the rib fractures, the fractured scapula,
as well his foot fractures. So, he did have injuries in isolation, but
it was also the constellation of injuries that was concerning.
Id. at 194-95.
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Moreover, DHS presented the testimony of Ashley Wingate, DHS
investigative worker, and Patrice Stewart-Lane, CUA case manager, Catholic
Community Services. Ms. Stewart-Lane testified that she was troubled that
there was no explanation for L.V.’s fractures, and that the family needed
services due to issues of domestic abuse. N.T., 8/23/17, at 233. She
expressed that the Children should remain in the kinship home. Id.
Mother presented the testimony of Dr. Michael Holick, a practicing
endocrinologist who specializes in the area of metabolic bone disease with
research focused on vitamin D deficiency. Although Mother offered Dr. Holick
as an expert in endocrinology and pediatric endocrinology, the trial court only
qualified Dr. Holick as an expert in the treatment of vitamin D deficiency. 6
Dr. Holick testified that L.V. had a “high likelihood” of having Ehlers-
Danlos hypermobility type 3 syndrome, a disorder of the collagen matrix
related to osteogenesis imperfecta and marfan syndrome. N.T., 8/23/17, at
284. He further noted that, due to vitamin D insufficiency, L.V. was at
increased risk for bone fragility. Id. at 285-86. Dr. Holick opined that this
combination “markedly increases the fragility of [the collagen matrix],
increasing risk for fracture with normal handling.” Id. at 303-304.
____________________________________________
6 Dr. Holick’s report, dated March 15, 2017, was admitted as Mother’s Exhibit
6. N.T., 8/23/17, at 310-11. He testified on voir dire that “endocrinology is
the study of hormones, and vitamin D is a hormone. . . .And also, … many of
the hormones are related to metabolic bone disease. . . .And, so, typically,
patients with metabolic bone disease will see an endocrinologist.” Id. at 263.
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Although Dr. Holick admitted that he did not examine L.V., he noted
symptoms of Ehlers-Danlos syndrome from L.V.’s medical records, such as
gastroparesis, mast cell hypersensitivity, and blue sclera (whites of the eyes).7
Id. at 277. Dr. Holick indicated that Mother was vitamin D deficient and, as
Mother breastfed L.V., “he was likely vitamin D deficient at the time of his
birth, and at least during the first month, when he was being breastfed, since
there is essentially no vitamin D in breast milk.” Id. at 285.
Moreover, Dr. Holick felt L.V. was likely to have Ehlers-Danlos syndrome
based on the fact that he diagnosed Mother with Ehlers-Danlos syndrome with
marfanoid features after clinical examination. Id. at 269, 274-75, 287.8
Given that Ehlers-Danlos syndrome is a genetic disorder that is autosomal
dominant, Dr. Holick believed L.V. had a fifty percent chance of acquiring it
from Mother. Id. at 268, 275, 284. As to his diagnosis that L.V. has Ehlers-
Danlos syndrome, Dr. Holick stated, “I can’t say that it explains 26 fractures,
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7 Dr. Holick testified that some pediatricians have not fully understood or
appreciated the variety of symptoms associated with Ehlers-Danlos syndrome
in infants, such as difficulty having full meals, gastroparesis, muddled-looking
skin, which is a sign for mast cell hypersensitivity. Dr. Holick claimed that it
is “well-documented in the literature by many publications that Ehlers-Danlos
syndrome is associated with fragility fractures of the skeleton.” Id. at 273.
8 Dr. Holick indicated that Ehlers-Danlos syndrome, while a genetic syndrome,
is diagnosed clinically with a nine-point Beighton score analysis that examines
the flexibility of various joints. A score of five out of nine would be diagnostic
for Ehlers-Danlos syndrome; Dr. Holick found Mother had a Beighton score of
seven out of nine. Id. at 269-71, 278-79.
However, Dr. Holick acknowledged that, as a Beighton score cannot be
assessed on infants, a diagnosis of Ehlers-Danlos syndrome cannot be made
with “a high degree of medical certainty” in infants. Id. at 299-300, 307-308.
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but what I can say is that it can certainly explain many of the fractures,
because it’s associated with bone fragility in children and adults.” Id. at 288.
Mother also presented the testimony of Dr. Julie Mack, a physician
certified in both radiology and pediatric radiology. Despite noting that Dr.
Mack had not focused in pediatric radiology for an extended period of time,
the trial court qualified Dr. Mack as an expert in pediatric radiology.9
Dr. Mack testified to an abnormality with L.V.’s case upon review of
radiologic imaging. N.T., 3/27/18, at 42. She observed that, “the imaging
was so unusual. This was not a case of standard fracture with typical healing
of fractures. . . . There’s something odd about these bones. . . . A lot of my
report is recommendation for more information, because I considered the
findings unusual.” Id. Thus, Dr. Mack expressed the need for further
consideration and investigation as to underlying metabolic and/or genetic
disease process. Id. at 42, 47, 69, 82.
I think … my conclusion in this case is that there are many
things in this case that do not -- should not be brushed aside as
irrelevant or unimportant, because they are standing out like big
white light bulbs, saying this is -- something’s unusual here and
this child deserves a consideration that these things actually
contributed to weak bones in this case. . . .
____________________________________________
9 Dr. Mack’s report, dated March 15, 2017, was admitted as Mother’s Exhibit
4. N.T., 3/27/18, at 81. Dr. Mack admitted that she has focused on breast
imaging since 2006, except for when on-call until 2011 and conducting private
consulting work. In qualifying Dr. Mack as an expert in pediatric radiology,
the trial court stated, “All right. I’m going to find the doctor’s an expert in
pediatric radiology, with this caveat, that her – and I’m going to give her
testimony the weight it deserves. However, keeping in mind that she has
really not practiced in this field since 2006. . . .” Id. at 38.
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Id. at 94. Dr. Mack further opined in her report,
[w]hile unexplained fractures raise the suspicion of possible
abuse, the radiologic findings seen in [L.V.] also raise a significant
concern that the best explanation for these unexplained fractures
and bone abnormalities is a bone fragility disorder that remains
undiagnosed. A work up by a clinician or geneticist with expertise
in bone fragility syndromes, preferably with an emphasis on
structural proteins, to ascertain whether additional imaging
and/or testing, such as whole exome sequencing, is warranted is
recommended. . . .
Mother’s Exhibit 4, at 18. However, while noting that features on the imaging
supported a diagnosis of rickets or a collagen disorder, Dr. Mack clarified that
Ehlers-Danlos syndrome requires a clinical diagnosis, not a radiographic one.
As such, Dr. Mack could not say whether L.V.’s injuries were due to an
underlying genetic disorder and could not rule out that L.V.’s injuries were
caused by abuse. N.T., 3/27/18, at 94-95, 102.
The Child Advocate presented, by way of rebuttal to the testimony of
Mother’s experts, respectively, the testimony of Dr. Sabah Servaes, a pediatric
radiologist at CHOP, who was also qualified as an expert in pediatric radiology.
Dr. Servaes questioned Dr. Mack’s conclusions:
Q. Okay. Can you tell the [c]ourt whether you -- what your --
whether you’re in agreement with what Dr. Mack has testified here
today?
A. Largely, no. Much of her commentary, some of her statements
are accurate and true, but her overall summary, I disagree with.
Q. Okay. Can you explain that in any further detail though?
A. Yes. So she has suggested that there may be some underlying
metabolic bone disease. That seems to be her primary concern.
And with metabolic bone disease, that’s a systemic disorder, that
we see it in multiple bones, that we don’t just see it in a single
bone or a single area of the body. And it is true that, for example,
rickets, one of the named disorders that she listed, you might see
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it earlier in part of the skeleton than another -- than in other parts.
However, it will be symmetric. You’ll see it on both sides. . . .
N.T., 3/27/18, at 115-16.
In her professional opinion, Dr. Servaes testified that she did not believe
that L.V. has any kind of metabolic bone disorder. Id. at 124. She provided
that “the findings that we see in his case are very asymmetric. There is no
underlying systemic disorder that I can see on the images and it is typical
when there is metabolic bone disease that severe enough to result in fractures
that you can see the abnormality in the bones.” Id.
Rather, Dr. Servaes opined that L.V. was the victim of non-accidental
trauma. Id. at 128-29. When asked to explain, she responded, “There are
multiple fractures -- there are multiple fractures in different stages of healing.
They’re in characteristic locations, being at the ribs and at the ends of long
bones like the femur, the tibia, the humerus. And there isn’t any apparent
underlying disorder that I can see.” Id. at 129.
The Child Advocate also presented Dr. Paige Kaplan, a physician
formerly associated with CHOP, who was qualified as an expert in pediatric
genetics. Dr. Kaplan testified that she was present at the September 1, 2017
examination of L.V. (who was then one year old). Dr. Kaplan stated,
I observed that there were no features of Ehlers-Danlos syndrome
in [L.V.] He did not have any joint hypermobility. He walked very
well, independently, with a very steady gait for a child of one year
and three weeks.
The whites of his eyes, the sclera, were only slightly gray,
which is common in this age group. . . .
***
He did not have stretchy skin. He did not have any bruises. And,
in the history, his aunt reported no features that were suggestive
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of Ehlers-Danlos syndrome, such as frequent falls, bruising,
constipation, changes in color of his skin.
Additionally, he’d been reported to have dark brown
discoloration and pitting of his nails from birth, and I had seen
photographs of those. And, by the time he was evaluated at a
year and three weeks, this had cleared up.
N.T. 4/16/18, at 12-13. She continued,
In my observation of his exam that day, and in view of the
fact that he’d had extensive testing using the most modern
molecular methods for osteogenesis imperfecta -- brittle bone
disease -- and his chemical value, there was no evidence for him
having Ehlers-Danlos syndrome or osteogenesis imperfecta and it
was not warranted to do any other testing.
Id. at 14.
As such, Dr. Kaplan disagreed with Dr. Holick’s conclusion that L.V. had
Ehlers-Danlos syndrome. Id. at 14-15. Aside from a lack of evidence, she
explained that it is “not compatible with Ehlers-Danlos syndrome to have
fractures in a one or two or three month old baby. This is not part of the
Ehlers-Danlos syndrome.” Id. at 15-16. She also disagreed with Dr. Holick’s
conclusion that a vitamin D deficiency made L.V. susceptible to fracture,
noting, “a recent article by another consortium of vitamin D experts from
around the world concluded that low vitamin D was not the reason for people
having multiple fractures, per se.” Id. at 16-17. Further, while vitamin D
deficiency can result in rickets, which can be linked with fractures, Dr. Kaplan
indicated that this usually occurs with weight-bearing fractures, which would
not occur in a two-month old baby. Id. at 17.
Moreover, Dr. Kaplan reiterated that genetic testing was conducted and
revealed that L.V. did not have osteogenesis imperfecta. Id. at 18, 20. As
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such, when asked if there was evidence of an underlying genetic disorder for
L.V.’s injuries, Dr. Kaplan responded, “There was no evidence for [L.V.] having
a condition that would lead to multiple fractures[,] such as osteogenesis
imperfecta[,] in this two to three month-old baby.” Id. at 20-21.
At the conclusion of the hearing on April 16, 2018, the lower court
adjudicated the Children dependent, and found aggravated circumstances
existed such that reasonable efforts were not required by CYS to reunify Child
with Mother or Father. The court stated,
Based on the testimony of Dr. Christian, Dr. Henry, Dr.
[Servaes] and Dr. Kaplan, today, I’m making the following
findings: That there are no symptoms in this child of genetic
disorder, there are no Ehlers-Danlos syndrome [sic], there’s no
brittle bone disease, and there’s no evidence of [R]ickets in this
child.
What there is evidence of is child abuse -- 26 fractures. And
the testimony of the experts, the pediatric experts and the genetic
experts, the child abuse experts -- none of which was presented
by the parents’ attorney.
Dr. Holick was qualified as a vitamin D expert. I had trouble
with his testimony. It did not appear to be credible to me.
I did find the testimony of the doctors[] presented by the
City and by the child advocate[] to be credible, along with the CUA
case manager, Ms. … Stewart-Lane, and also the DHS
investigator, Ms. Wingate. I found the divergent testimony of the
parents, pointing fingers at each other, to be incredible.[10]
And therefore, I am adjudicating the child dependent based
on present inability. I’m making a finding of child abuse under
Title 23, and also making a finding of aggravated circumstances
as to both parents under Title 42, Section 6202(2).
____________________________________________
10 Mother and Father’s testimony does not suggest that they were “pointing
fingers at each other.” Mother claimed she had no reason to believe L.V. was
harmed by Father. N.T., 3/27/18, at 154, 160. Further, Father testified he
did not believe it was possible that Mother harmed L.V. Id. at 180.
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I am ordering no reasonable efforts to reunite this child,
based upon the severity of the injuries to this child, and based
upon all of the testimony, the totality of which -- I’ve reached the
inescapable conclusion that this child has been abused and that
the parents were the ones who had custody of this child while the
abuse occurred.
N.T., 4/16/18, at 76-77. Upon clarification, the court indicated that it was
also adjudicating L.V.-H. dependent, and making a finding of aggravated
circumstances and that no reasonable efforts for reunification were necessary.
Id. at 77-78. However, the trial court allowed Mother and Father to have
continued visitation. These findings were memorialized by orders entered
April 16, 2018. The court entered separate orders of adjudication and
disposition and aggravated circumstances orders for each child.
On May 11, 2018, Mother filed a timely notice of appeal, along with
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). On May 23, 2018, this Court consolidated Mother’s
appeals pursuant to Pa.R.A.P. 513.
On appeal, Mother raises the following issues for our review:
1. Did the trial court err when it denied Mother the opportunity to
take her son, L.V., outside of Philadelphia to be examined by a
Massachusetts [e]ndocrinologist (Dr. Michael Holick) and Ohio
pediatric geneticist (Dr. Marvin Miller)?
2. Did the trial court err when it failed to credit Dr. Holick’s
testimony because he had not examined L.V., failed to credit Dr.
Holick because he was not a child abuse doctor, failed to qualify
Dr. Holick as an expert in endocrinology and pediatric
endocrinology, and criticized Mother for failing to procure a
geneticist?
3. Did the trial court err when it failed to recuse itself for having a
bias in favor of child abuse and CHOP doctors?
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4. Did the trial court err when it ordered that DHS make no efforts
to reunify the children with their Mother?
5. Did the trial court err by extreme delay in scheduling the
dependency hearing?
6. Did the trial court err when it ordered that DHS make no efforts
to reunify the children with their Mother?
7. Did the trial court err when it linked reunification with one or
both of the parents’ confessing to abusing L.V.?
Mother’s Brief at 2-3. [11]
Our 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 R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010) (citations omitted).
The trial court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve conflicts
in the evidence.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004)
(citation omitted).
____________________________________________
11 Upon review of Mother’s Rule 1925(b) statement and the argument section
of her brief, it appears that Mother made an error and repeated her sixth issue
in her statement of questions presented. From her Rule 1925(b) statement
and argument, we recognize that her fourth issue is, “The trial court erred
when it found the children dependent, when it found [L.V.] had been abused
and erred in finding aggravated circumstances.” Concise Statement of Matters
Complained of on Appeal, 5/11/18. As we are able to discern the issue, as
were the trial court and other parties, we do not penalize Mother.
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However, prior to reaching the merits of Mother’s arguments, we must
first address we have jurisdiction over the appeal. “This [C]ourt may examine
appealability sua sponte because it affects our jurisdiction over the matter.”
In re K.K., 957 A.2d 298, 303 (Pa.Super. 2008) (citation omitted).
First, we observe Mother filed only one notice of appeal on May 11, 2018
from the separate orders as to each child entered on the separate dockets.
Our Supreme Court has held that “where a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed for each
case.” Commonwealth v. Walker, ___Pa.___, 185 A.3d 969, 971 (2018).
However, the Court in Walker declined to apply the rule to the case
before it, because to do so would run “contrary to decades of case law from
[the Pennsylvania Supreme Court] and the intermediate appellate courts that,
while disapproving of the practice of failing to file multiple appeals,
seldom quashed appeals as a result.” Id. Thus, the Supreme Court instructed
that in all future cases, a failure to file a notice of appeal for each lower court
docket will result in quashal of the appeal. As Mother’s notice of appeal was
filed prior to the Walker ruling, Walker is not controlling in this case. Thus,
we decline to quash Mother’s appeal on this basis.
Next, we must determine whether we have jurisdiction as to review the
trial court’s previous orders denying Mother’s request to take L.V. out-of-state
for medical examination, and its denial of Mother’s motion for recusal. The
trial court did not address the merits of these claims, which it deemed untimely
as Mother did not file appeals within thirty days of the entry of these orders.
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See Pa.R.A.P. 903 (providing that a notice of appeal “shall be filed within 30
days after the entry of the order from which the appeal is taken”).
However, it is well-settled that, “[a]n appeal lies only from a final order,
unless permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468,
471 (Pa.Super. 2013). Generally, a final order is one that disposes of all
claims and all parties. See Pa.R.A.P. 341(b). See also In re H.S.W.C.-B &
S.E.C.-B., 575 Pa. 473, 478, 836 A.2d 908, 911 (2003) (finding, with regard
to dependency matters, “[a]n order granting or denying a status change, as
well as an order terminating or preserving parental rights, shall be deemed
final when entered”) (citation omitted).
Upon review, we conclude that the April 5, 2017 and May 17, 2017
orders as to permission to take L.V. for additional medical examination, and
the December 15, 2017 order as to recusal were not final, appealable orders.
As these orders did not dispose of a goal change and/or termination petition,
the within appeal challenging those matters is timely.
Moreover, DHS and the Child Advocate argue that the majority of
Mother’s claims should be deemed waived as they are undeveloped without
pertinent citation to legal authority. See In re W.H., 25 A.3d 330, 339 n.3
(Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364 (2011) (quoting
In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived”); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66
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(Pa.Super. 2017). Although Mother’s brief is deficient in some instances,
Mother provides some citation to legal authority and does not prevent
meaningful review. Thus, we decline to find waiver.
Turning to the merits of Mother’s appeal, Mother first claims that the
trial court erred when it denied her the opportunity to take L.V. for
examination by Dr. Holick (an endocrinologist in Massachusetts) and Dr. Miller
(a pediatric geneticist in Ohio). Mother’s Brief at 10. Mother argues,
[t]he right to obtain expert witness evidence in a medically
complex case is mandated by the due process clause of the United
States Constitution. The Pennsylvania Supreme Court has
recognized a parent’s right to have relevant expert witness
testimony admitted at a dependency hearing, reversing the trial
court’s decision to exclude such evidence. [In re C.M.T.], 861
A.2d 348, (Pa. 2004). The trial court’s refusal to allow Mother to
take (or send) L.V. outside of Philadelphia to obtain second
opinions to counter the opinions of the four CHOP doctors called
by DHS and the CA [Child Advocate], effectively denied Mother
the ability to adequately defend the medically diagnosed
allegations of child abuse in the dependency petition.
Id. at 10-11. While Mother acknowledges the lower court permitted further
examination of L.V. in Philadelphia, she claims this restriction is unfair as
neither of her desired experts is licensed in Pennsylvania, Pennsylvania does
not allow telemedicine, and Pennsylvania’s temporary license requirements
are burdensome. Id. at 13-14.
Section 6339 of the Juvenile Act provides in pertinent part:
(b) Physical and mental examinations and treatment.--
During the pendency of any proceeding the court may order the
child to be examined at a suitable place by a physician or
psychologist and may also order medical or surgical treatment of
a child who is suffering from a serious physical condition or illness
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which in the opinion of a licensed physician requires prompt
treatment, even if the parent, guardian, or other custodian has
not been given notice of a hearing, is not available, or without
good cause informs the court of his refusal to consent to the
treatment.
42 Pa.C.S.A. § 6339(b).
In this case, the trial court granted Mother’s motion to seek additional
medical examination from the physicians of her choice, but required that such
examinations be conducted in Philadelphia. The trial court provided:
THE COURT: So, I’m granting your motion as to allowing
an examination of the child. I need the names of which doctors
you wish the child to be examined by. This examination will take
place in Philadelphia. Your expert doctors are to make
arrangements with the appropriate hospital or doctor to conduct
these examinations.
[] how old is the child now, seven months old?
[Counsel for DHS]: Eight months, Your Honor.
THE COURT: Eight months old. I’m not having an eight-
month-old dragged throughout the country. I mean[,] if your
expert was in China[,] I wouldn’t grant the motion either.
***
I’m just changing the venue of where these exams will take
place. The most logical place is where the child is in placement in
Philadelphia. This [c]ourt has jurisdiction. And the injuries
allegedly occurred in Philadelphia. The expert doctors at CHOP
are in Philadelphia. I’m not denying your motion[,] I’m just
granting your motion and telling you that you are to make
arrangements for the doctors to examine the child. You put in
your motion[,] I think I read[,] this examination would only take
an hour or two. Have the doctor fly down on his clinical day for
an hour or two from Boston. It’s a one hour flight. He’ll be back
in two hours or three hours after he examines the child, and he
can write up his report.
N.T., 4/5/17, at 23-24.
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In denying Mother’s motion for reconsideration, the court explained:
THE COURT: I’m not precluding you from having this
doctor examine this child. My ruling was the child’s not going to
be moved out of state to accommodate your client’s interest. It’s
not in the best interest of a child who is severely injured to be
moved and examined by a doctor who I don’t even know is
qualified to examine the child.
N.T., 5/17/17, at 12.
The trial court appropriately exercised its discretion in determining that
the only suitable place for L.V. to be examined was Philadelphia, as it would
not be in L.V.’s best interests to move him long distances due to his recent
recovery from twenty-six fractures and the possibility that L.V.’s bones were
fragile due to a metabolic and/or genetic condition.
Mother baldly asserts that it was too burdensome for her experts to
obtain temporary licensing to examine L.V. in Pennsylvania. However, it
appears that she did not fully investigate this course of action as her own
expert, Dr. Holick, was unaware such licensing was available. Moreover,
Pennsylvania regulatory law allows for the temporary licensure of an
appropriately licensed physician who is licensed in “another state, territory, or
possession of the United States” for numerous circumstances, including the
physician’s “participation in a medical or surgical procedure necessary for the
well-being of a specified patient.” 49 Pa.Code § 17.6(a)(2). The Board of
Medicine also has the discretion to issue a temporary license to a physician
for a purpose as deemed appropriate on a case by case basis. 49 Pa.Code §
17.6(i). As such, this claim is meritless.
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Second, Mother asserts that the trial court should have qualified Dr.
Holick as an expert in endocrinology and given Dr. Holick’s testimony more
weight. To the extent Mother opposes the court’s failure to qualify Dr. Holick
as an endocrinologist or pediatric endocrinologist, we find that Mother failed
to preserve such a challenge as she did not specifically include this issue in
her Rule 1925(b) statement. See Krebs v. United Refining Co. of
Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to
preserve issues by raising them both in the concise statement of errors
complained of on appeal and statement of questions involved portion of the
brief on appeal results in a waiver of those issues); see also In re
M.Z.T.M.W., 163 A.3d at 466 (same). As such, this portion of Mother’s
second issue raised would be waived.
Nevertheless, regardless of waiver, we find the entire issue to be without
merit. As to expert witnesses and qualification, this Court has stated,
“Whether a witness has been properly qualified to give
expert witness testimony is vested in the discretion of the trial
court.” Kovalev v. Sowell, 839 A.2d 359, 362–363 (Pa.Super.
2003) (citation omitted). “It is well settled in Pennsylvania that
the standard for qualification of an expert witness is a liberal one.
When determining whether a witness is qualified as an expert the
court is to examine whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation.” Id. (citations omitted).
The determination of whether a witness is a qualified expert
involves two inquiries: When a witness is offered as an expert,
the first question the trial court should ask is whether the subject
on which the witness will express an opinion is so distinctly related
to some science, profession, business or occupation as to be
beyond the ken of the average layman.... If the subject is of this
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sort, the next question the court should ask is whether the witness
has sufficient skill, knowledge, or experience in that field or calling
as to make it appear that his opinion or inference will probably aid
the trier in his search for truth. Sowell, 839 A.2d at 363 (citations
and quotation marks omitted).
Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 200–201
(Pa.Super. 2017); see also Pa.R.E. 702. Further, “the weight to be given to
such testimony is for the trier of fact to determine.” Miller v. Brass Rail
Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995).
Upon review, the record supports the trial court’s qualification of Dr.
Holick as an expert in vitamin D deficiency and treatment. Dr. Holick testified
that, while he practiced in the field of endocrinology, which is the study of
hormones, he focused his research on vitamin D deficiency. N.T., 8/23/17, at
240, 263. He confirmed that he is neither a pediatrician nor child abuse expert
nor geneticist. Id. at 261-62, 265.
Moreover, the trial court “had trouble” finding Dr. Holick’s testimony to
be credible as Dr. Holick admitted he diagnosed L.V. with Ehlers-Danlos
syndrome without ever physically examining L.V. Rather, Dr. Holick inferred
that L.V. had this condition by reviewing L.V.’s medical records and examining
Mother. Id. at 266. The trial court chose to give more weight to DHS’s experts
who argued that L.V.’s numerous fractures were indicative of child abuse as
there was no signs that L.V. suffered from metabolic bone disease.
As noted above, we are required to defer to a trial court’s credibility
findings if they are supported by the evidence. In re R.J.T., supra. The trial
court was free to resolve conflicts in the competing medical expert testimony
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and find DHS’s experts to be more credible than Mother’s experts. See In re
M.G. & J.G., supra. As the trial court’s findings are supported by the record,
the trial court was within its discretion to give Dr. Holick’s testimony the
weight and credibility it deemed appropriate.
Third, Mother asserts that the trial court should have recused itself due
to its fixed belief that child abuse had occurred and in showing bias for CHOP
doctors over physicians who were not from Philadelphia. Moreover, Mother
asserts that the trial court exhibited hostility towards her expert, Dr. Holick.
Mother asserts, “[t]he trial court made a series of comments on the record
that would lead a reasonable person to question the trial court’s ability to be
fair and impartial when hearing child abuse and CHOP doctor testimony.”
Mother’s Brief at 29.
The denial of a motion to recuse is preserved as an assignment of error
that can be raised on appeal following the conclusion of the case. Reilly by
Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204,
222, 489 A.2d 1291, 1300 (1985), overruled on other grounds as recognized
by Gallagher v. Harleysville Mut., 617 A.2d 790, 794 (Pa.Super. 1992).
We review a trial court’s decision to deny a motion to recuse for an abuse of
discretion. Vargo v. Schwartz, 940 A.2d 459, 471 (Pa.Super. 2007).
Indeed, our review of a trial court’s denial of a motion to recuse is
exceptionally deferential. Id. (“[W]e extend extreme deference to a trial
court’s decision not to recuse”). “We recognize that our trial judges are
‘honorable, fair and competent,’ and although we employ an abuse of
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discretion standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially.” Commonwealth v.
Harris, 979 A.2d 387, 391-92 (Pa.Super. 2009) (citation omitted). A trial
judge should grant the motion to recuse only if a doubt exists as to his or her
ability to preside impartially or if impartiality can be reasonably questioned.
In re Bridgeport Fire Litigation, 5 A.3d 1250, 1254 (Pa.Super. 2010).
In order to prevail on a motion for recusal, the party seeking recusal is
required “to produce evidence establishing bias, prejudice or unfairness which
raises a substantial doubt as to the jurist’s ability to preside impartially.” In
re S.H., 879 A.2d 802, 808 (Pa.Super. 2005) (citation omitted). Critically,
Code of Judicial Conduct Rule 2.2 (Impartiality and Fairness) provides that
“[a] judge shall uphold and apply the law, and shall perform all duties of
judicial office fairly and impartially.”
In the case sub judice, we discern no abuse of discretion. Although the
court expressed confidence in the qualifications and opinions of the CHOP
physicians offered by DHS and questioned Dr. Holick’s credibility, the trial
court’s statements do not evidence bias. Rather, the trial judge’s reluctance
to credit Dr. Holick’s opinion was based on his skepticism of Dr. Holick’s
diagnosis of L.V. with a metabolic bone disease given that (1) Dr. Holick had
not examined the child and (2) doctors that had examined L.V. found no
indication of metabolic bone disease.
Although the trial court at several points did make seemingly
inappropriate criticisms of Dr. Holick’s credentials, past achievements, and
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publications, “we are nevertheless mindful of the fact that judges, too, are
subject to human emotion.” Commonwealth v. Abu-Jamal, 553 Pa. 485,
507–508, 720 A.2d 79, 89–90 (1998) (finding trial court’s hostile and
intemperate remarks did not evidence a settled bias). We recognize that the
trial court was dealing with a difficult and emotionally-charged matter where
a two-month-old child suffered twenty-six fractures without explanation.
Moreover, while Mother highlights statements of the trial court that she
finds objectionable, Mother ignores the trial court’s statements in support of
her position and completely contrary to any assertion of bias. Notably, the
court stated,
[Mother and Father] are raising very legitimate claims . . .
that these injuries may have in fact occurred as a result of genetic
predisposition that the child suffers from. And I don’t think your
contradictions – I don’t know if you’re going to present any
evidence that [M]other doesn’t have this condition or not. If she
has the condition and the child is fifty percent predisposed as
counsel argues of having this condition, it weighs heavily with
regard to any ruling this [c]ourt has on child abuse.
N.T., 4/5/17, at 26. As such, we cannot find the trial judge abused his
discretion in ruling that he would be able to preside over the case fairly and
impartially.
In Mother’s fourth and sixth issues, she claims the trial court erred in its
findings relevant to dependency, abuse, and aggravated circumstances, which
suspended the need for DHS to make efforts toward reunification. We address
these claims together, as Mother intermingles these issues in her discussion.
Mother also claims DHS failed to establish her lack of parental capacity:
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Mother maintains that she never saw Father abuse L.V., and
never noticed any bruising or indications of abuse after L.V. was
alone with Father. However, during the pendency of this
dependency proceeding, Mother sought and obtained a Protection
[f]rom Abuse Order against Father for threats the father made
against her. . . . As a result, Mother and Father are no longer
together. Mother is not blindly protecting Father. Mother’s
actions to protect herself from Father after he made a verbal
threat, coupled with the fact that the medical professionals that
treated L.V. had no suspicion that L.V. was abused, are evidence
that Mother has protective capacity and was not ignoring L.V.’s
needs. The burden of proof that Mother lacked parenting or
protective capacity remains on Petitioner DHS[,] and DHS failed
to present any evidence whatsoever that Mother was unable to
care for her children. Without such evidence on the record, the
trial court erred when it found the children to be dependent and
when it ordered that no efforts be made to reunify the children
with the Mother.
Id. at 41-42 (footnote omitted).
Our standard of review is as follows:
[T]o adjudicate a child dependent, a trial court must
determine, by clear and convincing evidence, that the child:
is without proper parental care or control,
subsistence, education as required by law, or other
care or control necessary for his physical, mental, or
emotional health, or morals. A determination that
there is a lack of proper parental care or control may
be based upon evidence of conduct by the parent,
guardian or other custodian that places the health,
safety or welfare of the child at risk.
42 Pa.C.S.A. § 6302(1). “Clear and convincing” evidence has
been defined as testimony that is “so clear, direct, weighty, and
convincing as to enable the trier of facts to come to a clear
conviction, without hesitancy, of the truth of the precise facts in
issue.” In re C.R.S., 696 A.2d 840, 843 (Pa.Super. 1997)
(citation omitted).
In accordance with the overarching purpose of the Juvenile
Act “[t]o preserve the unity of the family wherever possible,” see
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42 Pa.C.S.A. § 6301(b)(1), “a child will only be declared
dependent when he is presently without proper parental care and
when such care is not immediately available.” In re R.T., [ ] 592
A.2d 55, 57 (Pa.Super. 1991) (citation omitted). This Court has
defined “proper parental care” as “that care which (1) is geared
to the particularized needs of the child and (2) at a minimum, is
likely to prevent serious injury to the child.” In re C.R.S., supra
at 845 (citation omitted).
In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013).
Although dependency proceedings are governed by the Juvenile Act (42
Pa.C.S.A. §§ 6301-75), the Child Protective Services Law (CPSL) “controls
determinations regarding findings of child abuse, which the juvenile courts
must find by clear and convincing evidence.” In Interest of N.M., 186 A.3d
998, 1011 (Pa.Super. 2018) (citing In the Interest of J.R.W., 631 A.2d 1019
(Pa.Super. 1993)). Section 6303 of the CPSL defines child abuse as including,
“intentionally, knowingly or recklessly” “[c]ausing bodily injury to a child
through any recent act or failure to act” or “[c]ausing serious physical neglect
of a child.” 23 Pa.C.S.A. § 6303(b.1)(1),(7) (effective June 12, 2018).12
Bodily injury is defined as “[i]mpairment of physical condition or substantial
pain.” 23 Pa.C.S.A. § 6303(a). Serious physical neglect is defined as follows:
Any of the following when committed by a perpetrator that
endangers a child’s life or health, threatens a child’s well-being,
causes bodily injury or impairs a child’s health, development or
functioning:
(1) A repeated, prolonged or egregious failure to supervise a
child in a manner that is appropriate considering the child’s
developmental age and abilities.
____________________________________________
12The definition of child abuse remained the same as the prior version of the
CPSL, effective October 28, 2016 to February 20, 2018.
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(2) The failure to provide a child with adequate essentials of life,
including food, shelter or medical care.
23 Pa.C.S.A. § 6303(a).
Moreover, Section 6381 of the CPSL 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.A. § 6381.
Upon careful review of the record, we discern no abuse of discretion with
the trial court’s determination to adjudicate the Children dependent. The
record substantiates the trial court’s findings that Mother and Father’s conduct
placed the health, safety or welfare of the Children at risk, and thus, its
conclusion that the Children were dependent without parental care and
control. The record further corroborates the finding of child abuse as the trial
court found DHS’s medical experts credible in testifying that L.V. suffered
numerous fractures that were most likely caused by inflicted or non-accidental
trauma. Thus, we will not disturb these findings.
As to aggravated circumstances, the Juvenile Act provides as follows:
(c.1) Aggravated circumstances.--If the county agency
or the child’s attorney alleges the existence of aggravated
circumstances and the court determines that the child is
dependent, the court shall also determine if aggravated
circumstances exist. If the court finds from clear and
convincing evidence that aggravated circumstances exist,
the court shall determine whether or not reasonable efforts
to prevent or eliminate the need for removing the child from
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the home or to preserve and reunify the family shall be
made or continue to be made and schedule a hearing as
required in section 6351(e)(3) (relating to disposition of
dependent child).
42 Pa.C.S.A. § 6341(c.1). The term “[a]ggravated circumstances” is defined
in part, as circumstances in which “[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 a parent.” 42 Pa.C.S.A. § 6302.
In turn, “serious bodily injury” is defined as “[b]odily 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 member or organ.”
Id. Further, “aggravated physical neglect” is defined as “[a]ny omission in
the care of a child which results in a life-threatening condition or seriously
impairs the child’s functioning.” Id.
As revealed, DHS’s medical expert opined that two-month-old L.V.
suffered twenty-six fractures, causing pain and swelling, as a result of non-
accidental trauma or abuse. Thus, the record supports the trial court’s finding
of aggravated circumstances based upon physical abuse to L.V. and its
determination requiring no efforts toward reunification. See 42 Pa.C.S.A. §
6302.
With respect to Mother’s claim that that trial court failed to show she
exhibited a lack of parental care towards the Children, this Court has
recognized that a trial court “need not find the existence of aggravated
circumstances as to a particular party; rather, it merely must determine
whether they are present in the case. This is … because the focus is not on
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the rights of the [p]arents; instead, the children’s safety, permanence, and
well-being take precedence.” In re R.P., 957 A.2d 1205, 1219 (Pa.Super.
2008) (citation omitted).
Accordingly, after a thorough review of the record, including the notes
of testimony, the exhibits presented, the trial court opinion, and the parties’
briefs, we discern no abuse of discretion in the trial court’s decision to
adjudicate the Children dependent and finding abuse, aggravated
circumstances, and that no reasonable efforts at reunification are required.
Mother next claims error due to the trial court’s delay in scheduling the
dependency hearing. Mother’s Brief at 36. She asserts that the trial court
took over one year from the time she had obtained her expert reports and
was prepared to proceed to complete the dependency hearing.
Mother, however, waived this issue by failing to raise it in the court
below as the matter proceeded and was scheduled. See Pa.R.A.P. 302(a)
(providing for waiver of issues not first raised in lower court).
In order to preserve an issue for appellate review, a party
must make a timely and specific objection at the appropriate stage
of the proceedings before the trial court. Failure to timely object
to a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
not called to the trial court's attention at a time when any error
committed could have been corrected. In this jurisdiction ... one
must object to errors, improprieties or irregularities at the earliest
possible stage of the adjudicatory process to afford the jurist
hearing the case the first occasion to remedy the wrong and
possibly avoid an unnecessary appeal to complain of the matter.
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In re S.C.B., 990 A.2d 762, 767 (Pa.Super. 2010) (citations omitted). As a
result, we need not review this claim further.
Lastly, Mother argues that the trial court erred in suggesting that no
reunification efforts would be made unless Mother or Father confessed to
causing L.V.’s injuries. Mother relies on In re N.M., in which this Court found
that a trial court abused its discretion in repeatedly refusing to consider
approved kinship care for a child with her grandmother based on an
unsupported speculation that the parents would visit the child without agency
supervision. This Court also found the trial court improperly expressed a fixed
presumptive idea that the child was abused and put barriers up for
reunification when her parents were fully compliant with their service plan
objectives. In addition, this Court admonished the lower court for telling the
parents that they would lose their child unless one of them confessed to
causing their child’s injuries. In re N.M., 186 A.3d at 1014 n.30. Based on
all of these observations, this Court found that the lower court had “done
everything in her power to alienate [the] parents from their child.” Id.
Upon our review of the record, we find this case distinguishable. The
trial court held numerous hearings, heard extensive testimony, and reviewed
hundreds of pages of documents before concluding that Mother and Father
were responsible for L.V.’s injuries. After finding aggravated circumstances
existed and directing that no reasonable efforts need to be made towards
reunification, the trial court indicated the following:
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THE COURT: Somebody did this, okay? And I don’t know
which parent is responsible, but collectively, you’re both
responsible.
There could come a time in the future in this case where one
of the parties comes forward and tells us what the real truth is,
and find out who was the perpetrator, or if they were both
perpetrators.
I’ll keep an open mind as to that. However, the facts of
this case dictate that this is a clear case of child abuse, and the
City has met its burden by clear and convincing evidence. . . .
N.T., 4/16/18, at 78 (emphasis added). With an open mind towards
reunification, the trial court ordered that Parents could continue visiting the
Children. As a result, we reject Mother’s claim that the trial court attempted
to extort a confession from Parents as to L.V.’s injuries.
For the foregoing reasons, we affirm the orders of the trial court
adjudicating the Children dependent, finding abuse as to both Mother and
Father, and finding aggravated circumstances and that no efforts need be
made toward reunification.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/19
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