In re B.B.

622 A.2d 979, 424 Pa. Super. 399
CourtSuperior Court of Pennsylvania
DecidedApril 2, 1993
DocketNo. 00175
StatusPublished
Cited by6 cases

This text of 622 A.2d 979 (In re B.B.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re B.B., 622 A.2d 979, 424 Pa. Super. 399 (Pa. Ct. App. 1993).

Opinion

HESTER, Judge:

This is an appeal from an order declaring B.B. an abused child and her mother, M.K., appellant, the perpetrator of the abuse by omission. M.K.’s paramour, Jason Jean, was named as the likely perpetrator of the abuse. B.B. was one and one-half years old when the abuse occurred. We affirm.

On November 19, 1991, Jason Jean took B.B., born February 13, 1990, to her baby-sitter, Christie Probst, about 9:00 a.m. Mrs. Probst changed B.B.’s diaper one hour later and discovered severe bruising across the child’s buttocks. Unable to reach B.B.’s father, J.B., Probst called the paternal grandparents who then called Lycoming County Children and Youth Services (CYS). Mrs. Probst also called CYS.

Later that afternoon, Linda Bloom, a CYS caseworker, went to the Probst home to view the child’s injuries, and took pictures of the bruised area. Ms. Bloom telephoned M.K. at work, and she immediately came to the Probst home. B.B. thereafter, was examined in the emergency room of a local hospital.1 The examining physician dated the infliction of the bruises to be between three to seven days prior. Ms. Bloom then ascertained the identities of all persons in whose care B.B. had been during that time and eliminated them as possible caretakers for B.B. As the natural father was away on a hunting trip, Bloom suggested the paternal grandparents act as custodians for B.B. and M.K. agreed. A few days later, B.B. was placed in the care and custody of her father, J.B.

B.B.’s parents never married but had resided together in J.B.’s house until their separation on October 1, 1991. From that date until November 19,1991, B.B. primarily resided with her mother and mother’s paramour, Jason Jean. There was no formal custody agreement or order; the parties alternated physical custody among J.B., the paternal grandparents, the maternal grandmother, and occasionally M.K.’s sisters. M.K. was employed full time, and B.B. went to the home of Christie [402]*402Probst Monday through Thursday, 9:00 a.m. until 5:00 p.m. On Fridays, she was in the care of another baby-sitter, Althea Alsbaugh.

The following procedural history is relevant. CYS filed a petition to declare B.B. a dependent child on January 9, 1992, under both the Juvenile Act, 42 Pa.C.S. § 6302, and the Child Protective Service Law, 23 Pa.C.S. § 6303. Hearings were held on January 29, February 7, and February 14, 1992. All parties were represented by counsel, including a court-appointed guardian ad litem for B.B. In addition to addressing the dependency action, the hearings addressed mother’s petition for habeas corpus, filed December 13, 1991, by which she sought return of B.B. to her custody, and father’s petition for custody filed December 23, 1991.

Appellant first argues that the evidence was insufficient to establish her as a perpetrator by omission. In support, she contends that the testimony of Dr. Nesbitt, the family physician, established that the bruises on B.B.’s buttocks “could indeed have come from an accident.” Appellant’s brief at 9. Moreover, she asserts that Nesbitt’s testimony establishes that the injuries B.B. sustained obviously resulted from an isolated incident. Appellant argues that the evidence did not establish that she knew of the risk of harm to B.B. and failed to prevent it. We disagree.

First, Dr. Nesbitt’s testimony did not establish that B.B.’s injuries could have resulted from an accident. Dr. Nesbitt had not examined B.B. In fact, Dr. Nesbitt had not seen B.B. for a nine-month period, from April, 1991, until January 13, 1992. Notes of Testimony (“N.T.”), 1/29/92, at 70. If anything, this testimony establishes that appellant did not insure that B.B. received the medical attention prescribed for an infant between the age of one and two.

Moreover, regarding the bruises specifically, Dr. Nesbitt simply viewed the photographs taken on November 19, 1991. Counsel for appellant asked Dr. Nesbitt, “[C]an you determine by looking at the photographs whether it is accidental or an abusive type bruise?” Dr. Nesbitt replied, “I cannot by [403]*403looking at these photographs say with any degree of certainty whether they’re accidental or inflicted.” Id. at 69. This testimony does not establish, as appellant contends, that the bruises were consistent with an accident. It simply substantiates that Dr. Nesbitt could not tell, one way or the other, with any degree of certainty, how the bruising occurred.

Second, appellant’s argument that even if Nesbitt’s testimony did not establish that the bruising occurred accidentally, it merely was an isolated incident, is troubling. It appears that appellant is contending that one incident of child abuse is not enough; a pattern of abuse or multiple incidents must be shown. This child is to be afforded the protection of the law whether there was one incident of abuse or many.

Dr. Collins, the physician who examined B.B. on November 20, 1991, testified extensively and succinctly about the nature of the injuries. Dr. Collins stated:

Of note, though, with the examination was a pronounced vertical bruising on the child’s buttocks. These were bruises which I would have guessed was possibly five to seven days in age looking at the way the bruising was turning green at the time and the evidence of no broken skin at that time, but there was definitely multiple bruising on the child’s buttocks. It would have been as if a ruler was used to repeatedly beat the child in that area. It was quite frankly something I have never ever seen in my life.

Id. at 54. Collins was asked about his statement that the bruising looked as if it had been made by a ruler. In reply, Dr. Collins stated:

They’re extremely parallel, uniform, straight, they’re, if you really, I have product of 12 years of Catholic education back in the ’50s and ’60s, I know what the ruler looks like when it hits a buttocks. Quite frankly I have no doubt in my mind that it was very similar in appearance.

Id. at 55. Counsel also asked Dr. Collins if the bruises could have resulted if the child had been struck while wearing a diaper. Dr. Collins responded,

[404]*404I dare say that the buttocks could be covered with a diaper and still suffer that kind of bruising, but the impact of the beating would have to be quite significant if a diaper could provide cushioning and still provide bruising like that, the kid would have to have been hit very, very hard.

Id. The doctor again was asked if the bruises could have resulted accidentally, and he stated, “No, it looks like a beating.” Id. at 56.

Jason Jean, appellant’s paramour, testified that he had struck B.B. with a paint stirrer one month before the incident. He testified that it was done in the presence of appellant, over the child’s diaper, and with appellant’s consent. Appellant confirmed Jean’s testimony. N.T., 2/7/92, at 147. Linda Bloom testified that Mr. Jean told her he disciplined B.B. with a paint stirrer after losing the wooden ruler they used to discipline B.B. Id. at 179; N.T., 1/29/92, at 32, 33. The trial court found this testimony significant.

Appellant, appellant’s paramour, and in fact, everyone who had B.B. in their care during the three to five days preceding November 19, 1991, denied inflicting the bruises or even noticing the bruises on B.B. Based upon the evidence presented, the trial court concluded:

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Bluebook (online)
622 A.2d 979, 424 Pa. Super. 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bb-pasuperct-1993.