I The Court issued a decision on the record following the December 21, 2015, hearing and signed the Adjudication/Disposition Order the same day. However, the actual Order was not served on the parties because of the Christmas holiday until December 31, 2015. 2 In their respective State of Errors Complained of on Appeal, Parents both argue the same first two issues. The Court will address these together. Mother's issue three and Father's issues three and four are also similar and will be fully addressed together.
1 when the child was injured and, therefore, there is no evidence that they intentionally, knowingly
or recklessly placed B.L. at risk for harm. Next, Parents argue that the Court erred in finding
B.L. to be a dependent child because Mother and Father provided a safe, clean and loving
environment.
Mother then argues that the Court erred in relying on the medical testimony and hospital
records because that evidence was inconsistent and was of questionable accuracy. Likewise,
Father argues that the Court improperly assigned credibility to the medical and expert testimony
rather than assigning credibility to Parents' testimony. Father also argues that the Court failed to
properly disregard the testimony of an expert witness who reviewed the LGH records.
The relevant facts are summarized as follows. On August 2, 2015, the Agency received
its first report on the family. Parents arrived at Lancaster General Hospital's Emergency
Department (LGH) with concerns when B.L. woke up from a nap and was not moving his right
arm. Mother told the LGH Nurse Practitioner, Kara Garber, that she though his arm had fallen
asleep, but had called B.L. 's pediatrician who suggested it might be a nursemaid's elbow and
recommended Parents take B.L. to the ER. Notes of Testimony (N.T.), Adjudication and
Disposition Hearing, 12/21/15, 47. Based on Mother's statements and her own observations, Ms.
Garber first believed the injury to be a nursemaid's elbow.3 N.T. at 10: 10-22. Ms. Garber then
attempted a reduction, the common treatment for that type of injury.
After the reduction, B.L. still exhibited an inability to use his arm and cried in pain when
his arm was moved. Ms. Garber determined it was not a nursemaid's elbow because doing the
reduction procedure itself would not cause pain unless the child's elbow was, in fact, dislocated
3 "A nursemaid's elbow is a radial head subluxation of the radial bone at the blow joint, and so what can happen is it can just become subleuxed (sic] or partially dislocated and the child won't move their arm. The kind of just hold their arm in an uncomfortable position until it is successfully reduced." N.T. at 10: I 0-22. 2 or child suffered some other injury. N.T. at 31. She then ordered X-Rays. The X-rays showed
that B.L. had a spiral fracture of his right humerus, which is commonly caused from a twisting of
that area. N.T. at 14. The X-Rays also showed a possible fracture of the distal ulna, the wrist
area, of the same arm. Id. At that time, Parents denied knowledge of any recent injury or trauma.
A spiral type fracture is considered suspicious if no trauma or fall is reported and the child is not
mobile. N.T. at 56:6-9. Because there was no explanation given for how the child could have
injured his arm, Ms. Garber consulted Dr. Dumornay, the supervising ER physician, with
concerns of child abuse. N.T. at 15. The concern was reported to ChildLine, and the Agency and
Police began investigating the report.
Parents' testimony placed them as the only two caregivers for the child for the days
leading up to the injury. Following the X-Rays, Ms. Garber once again asked the Parents if any
trauma could have caused the injury. N. T. at 15-16. Mother then stated the injury might have
been caused by B.L.'s four year old half-sister, who would take B.L.'s arms and dance
with him while he was in his roller chair. Ms. Garber testified that this explanation was
inconsistent with Child's injuries:
She's four, it would be, you know, unusual for a four year old to inflict any injury such as that on another child. And again, it would depend how she was holding his arm, how he responded thereafter. He should have been immediately symptomatic thereafter. I think it unlikely.
N.T. at 49:23-25, 50: 1-2. B.L. was placed into a splint and given Tylenol with codeine for pain
The Agency then implemented a Family Safety Plan (FSP) prohibiting any unsupervised
contact between Parents and B. L. The children were to reside with Paternal
Grandparents. Following the implementation of the FSP, Parents provided two explanations to
the caseworker for the injury:
3 . Th e exp I anations th at were proviid ed to me were t h at d ay h6lt,,\*e,{ /\ was d ancmg . wi'th the child and they believed caused the injury. I explainea to tnem after speaking with medical professionals that ... that was not a plausible explanation. And then at that point, that's when they had stated that they believed that the injury had been caused by the nurse when she had attempted the nursemaid's elbow.
58:7-14. At the time of the Shelter Care hearing, the criminal and child abuse investigations
regarding B.L. 's injuries remained ongoing.
On September 17, 2015, B.L. was seen by Dr. Kathryn Crowell at Penn State Hershey
Children's Hospital. Dr. Crowell works with a child protective team, a group of pediatricians and
a social worker and psychologist who see children for suspected abuse and neglect. She is an
expert in the field of pediatrics, with a specialty in the field of child abuse. Dr. Crowell and her
team evaluated B.L. in an outpatient setting, met with Parents, obtained medical history,
reexamined B.L., reviewed the record from LGH and took another X-Ray of the injury. Dr.
Crowell determined that B.L.' s injury was consistent with physical abuse. Dr. Crowell testified .
that when she met with Parents, they did not allege another child had caused the injury. At that
time, Parents indicated that they believed Ms. Garber was responsible for B.L. 's spiral fracture.
Dr. Crowell testified that she told Parents that a reduction would not cause a spiral fracture.
Father then showed Dr. Crowell how Ms. Garber had performed the reduction. Dr. Crowell
testified that Father's demonstration also would not have resulted in the twisting of the humerus
and could not have caused the injury. N.T. at 39.
On October 1, 2015, the Agency completed its abuse investigation, and indicated Mother -----·--·- .. ·------- and Father as perpetrators of abuse. At that time, the Agency petitioned the Court for emergency
placement ofB.L. to assure his safety and well-being. B.L. was placed into the physical custody
of the Agency on October l, 2015.
4 At the adjudication/disposition hearing on December 21, 2015, the Agency offered the
testimony of Ms. Garber, Dr. Crowell and Elan Roth, the Agency caseworker. The Court found
the Child to be a victim of physical abuse as defined in 23 Pa. C.S.A §6303 and found Parents
were the perpetrators of that abuse. The Court also found B.L. dependent and entered a
disposition approving a child permanency plan with the primary goal of reunification with
Parents. Parents have appealed the December 21, 2015, Order of Adjudication and Disposition.
Parents first argue the Court erred in finding B.L. to be an abused child and finding
Parents the perpetrators of that abuse. In deciding whether Parents were perpetrators of abuse to
the Child, the Court first established that the Child's injuries constituted abuse. Where child
abuse is alleged in a dependency case, the Child Protective Services Law (CPSL) and the
Juvenile Act (Act) must be construed and applied together. The Act is a procedural act giving the
Court jurisdiction over and the authority to make dependency findings, including whether or not
a child has been abused. The primary purpose of the CPSL is to provide for the quick and
effective reporting of suspected child abuse and to serve as a vehicle for providing protective
services to prevent any further abuse. In Interest of J.R.W., 428 Pa. Super. 597, 631 A.2d 1019
(1993).
In resolving abuse allegations, the Court must refer to the definitions provided in both the
Act and the CPSL. The CPSL defines "child abuse", in part, as, "intentionally, knowingly or
recklessly doing any of the following: (1) causing bodily injury .. -··. to a child through any recent act .. _,_ .... _
of failure to act." §6303 (b. l )( 1 ). "Bodily injury" is defined as "impairment of physical condition
or substantial pain." §6303(a). "Intentionally," "knowingly" and "recklessly" are terms defined
in 18 Pa.C.S. §302 (relating to general requirements of culpability). "Perpetrator" is also defined
as "a person who has committed child abuse as defined in this section," and can be a parent of
5 the child. Id. When determining whether child abuse occurred, innuendo and suspicion alone are
not enough to compel a finding of child abuse. Matter of Read, 693 A.2d 607 (Pa. Super. 1997).
Instead, the abuse must be established by clear and convincing evidence. Id.
The record supports and the Court found by clear and convincing evidence that the
injuries that B.L. sustained impaired his physical condition and resulted in substantial pain,
pursuant to Section 6303(b.1 ). Parents testified the Child was not moving his arm, necessitating
the visit to LOH. The X-Rays revealed B.L. suffered a spiral fracture of his humerus, which
impaired his physical functioning and explained his unwillingness to use his arm. Dr. Crowell
testified that in addition to B.L. 's inability to move his arm, the injury that caused a spiral
fracture, would have caused significant, on-going pain. It is clear, B.L. suffered substantial pain
from his spiral fracture. He would not move his arm and cried when other's tried to move it.
Furthermore, an analysis of the record reflects the substantial evidence presented in support of
this Court's finding that B.L.'s injuries satisfied the definition of "child abuse" and the identity
of the parents as the perpetrators of that abuse. Evidence of the requisite intentional, knowing, or
reckless act causing bodily injury can be established through circumstantial evidence of
sufficient quantity and quality. Malice need not be proved to establish child abuse. This
circumstantial evidence is more fully discussed in the next part of this opinion.
The Superior Court has long recognized the applicability and importance of the
evidentiary presumption in Section 638l(d) regarding the identity of the abuser. While the -------------·--- ..-
Agency has the burden of proving the existence of child abuse by clear and convincing evidence,
the identity of the perpetrator of that abuse need only be established through prima facie
evidence in certain circumstances. §634l(c). 23 Pa. C.S.A. § 6381(d) provides:
Evidence that a child suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omission of the parent or other
6 person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent of other person responsible for the welfare of the child.
§6381(d); B.B. v. Department of Public Welfare, 17 A.3d 995; C.S. v. Department of Public
Welfare, 972 A.2d 1254.
When a child is in the care of multiple parents, both parents are accountable for the care
and protection of the child, whether they actually inflict the injury or failed in their duty to
protect the child. Prima facie evidence is sufficient to establish that the parent perpetrated that
abuse unless the parent rebuts the presumption. Pennsylvania case law states that the
presumption satisfies the intent element unless the prima facie evidence is successfully rebutted.
In the Interest of L.Z., 111 A.3d 1164 (Pa. 2015). Parents may present evidence demonstrating
that they did not inflict the abuse, potentially by testifying that they gave responsibility to
another person or the injuries were accidental rather than abusive. Evaluation of the validity of
presumption then rests with the trial court to weigh the credibility of the prima facie evidence
presented by the Agency and the rebuttal of the Parents. Id.
The record shows that Parents were B.L. 's sole caregivers the days leading up to his
injury. Mother testified that B.L. was fine before napping in his swing the day of the injury. She
testified that she left the Child alone with Father for about an hour while she showered and
helped a neighbor. She further testified that upon returning to the living room, Father called her
attention to Child's injury. Parents do not argue any other individuals were caring for B.L. during .... -· ffiat time. - ------- -·
Moreover, the Court found neither of Parents' explanations for B.L. 's injury to be
credible. They failed to rebut the presumption. Dr. Crowell testified that neither of the
explanations Parents gave would have resulted in the type of injury B.L. sustained. It was
extremely unlikely that a four year old child would be able to cause the injury given the amount
7 of force necessary to cause a spiral fracture. Moreover, even if the four year old had caused the
spiral fracture, B.L. would have resulted in the impairment of his arm and cried out immediately
from pain. According to Parents, it was only after his nap that they noticed B.L. wasn't using his
arm. Therefore, the Court did not find the explanation that Child's sibling inflicted the injury
credible.
Upon being told that their first explanation was inconsistent with the medical evidence,
Parents then accused the LGH Nurse Practitioner, Ms. Garber, of causing the injury. It is not
contested that B.L. displayed symptoms of an injury to his arm prior to his visit to LGH. The
Parents' account indicates that B.L. wasn't using his ann and that he cried when his arm was
moved. The record is quite clear that B.L.'s injuries were present prior to Ms. Garber's
reduction. Even after the reduction was attempted, B.L. continued to cry. This suggested to Ms.
Garber that it was not a nursemaid's elbow. After reviewing the X-Rays, it was determined that
the pain was caused from the spinal fracture.
After again being told his explanation was not consistent with the medical evidence,
Father then testified in an attempt to blame Ms. Garber. Contrary to all the other evidence in the
record, Father testified that B.L. was so upset by Ms. Garber's presence that he would cry when
she was around but did not cry any other time. Father also testified that the child was
comfortable during the second attempt at reduction performed by Dr. Dumornay, and was fine
immediately afterward. Ironically, these were the exact behaviors Ms. Garber indicated in her ·------------ testimony that a Child would display before and after a successful reduction. The Court infers
that Father is implying Ms. Garber performed the reduction incorrectly and the doctor performed
the reduction correctly. However, the Court does not follow Father's logic. Specifically, if the
Court were to believe Father that Ms. Garber caused the spiral fracture during the reduction, then
8 B.L. would not be calm during the second reduction, but instead would be in pain from that new
injury.
Ms. Garber routinely and successfully performed reductions approximately once a week
and treats them using the same method. Furthermore, Dr. Crowell testified that a spiral fracture
would not occur from an ordinary reduction. Parents' attempts to shift the blame lacks any
credible explanation for B.L. 's injuries.
Therefore, the Court found that clear and convincing evidence was presented that the
injuries the Child sustained were the result of child abuse. The injuries could not be acceptably
explained away by his parents. The medical evidence established that the Child's injuries were
non-accidental and were consistent with child abuse. The totality of the record establishes by
clear and convincing evidence that the injuries were either intentionally or knowingly or
recklessly inflicted on the Child. Prima facie evidence was presented as explained above that
Mother and Father were perpetrators of the abuse.
Parents also appeal the finding of dependency. The Courts have held that "A finding of
abuse may support an adjudication of dependency." In re C.R.S., 696 A.2d 840, 843 (Pa. Super.
1997). That is exactly the basis for the Court's decision. Parents argue that they did not cause the
abuse and posed no risk to the child, and therefore, a finding of dependency was made in error.
The Court again disagrees. The totality of the record establishes that clear and convincing
evidence that B.L. was a victim of child abuse as defined in the statute. "The fact that his parents
express bewilderment over the cause of his injuries does not obviate their responsibility." In the
Interest of J.O.V., 454 Pa. Super. 630, 686 A.2d 421, 423 (1996). In determining whether there
exists proper care, equal weight is given to acts and omissions since parental duty includes
protection of child from harm §6302( I).
9 In determining dependency, the Court's primary consideration was the safety and health
of the Child, the victim of the physical abuse. Clear and convincing evidence existed that the
Child was abused and without parental care and that Child's injuries would not have occurred
but for Parents' acts or omissions as his primary caregivers. The record supports the Court's
finding that B.L. is a dependent child.
Parents also argue that Ms. Garber's testimony was contradictory and questionable. The
Court examined the exhibits admitted to the record to gain a more accurate timeline in instances
where testimony was unclear. Despite Parents arguments to the contrary, the Court found the
testimony of Ms. Garber and Dr. Crowell to be credible and persuasive. In contrast, the Court
found Parents' testimony to be evasive and lacking credibility. Parents were unable to provide a
consistent explanation for B.L. 's injuries that would fit with the medical evidence. They were
unable to answer any specific questions on when the original injury occurred. And they
attempted to blame others once they discovered the medical evidence rejected their prior
explanation.
Furthermore, Father argues that Dr. Crowell's testimony should be disregarded because it
was based on speculation and LOH records. Father's argwnent simply ignores that Dr. Crowell
and her team conducted a separate exam of Child, met with Child's parents and even ordered
new X-rays, in addition to reviewing LGH records. To be clear, while the Court did find Ms.
Garber's testimony and the LGH records credible, it did not rely solely on the statements
provided by Ms. Garber in rendering its opinion. The Court relied on the totality of the
substantial medical evidence concerning the child's injuries. "Substantial evidence" is defined
under 23 Pa. C.S. §6303 as "evidence which outweighs inconsistent evidence and which a
reasonab]e person would accept as adequate to support a conclusion." The totality of the credible
10 and relevant medical evidence in this record is compelling and outweighs the inconsistent and
inconclusive testimony received from the parents.
Based upon the evidence presented and having resolved all issues of credibility, the Court
found for the above stated reasons, that the Agency established by clear and convincing evidence
that B.L. was an abused child and that B.L. is a dependent child. Furthermore, the record
establishes that the Parents were the perpetrators of his abuse. All issues raised by Mother and
Father in their respective 1925(b) statements have been fully addressed. The Court's
determination that the Agency met its burden and the Order of Adjudication and Finding of
Abuse should be affirmed. The Clerk of Courts is directed to transmit the record to the Superior
Court.
BY THE COURT:
Date: ~ . I ' 2otG,
ATTEST: I certify this document to be filed in the Lancaster County Office of o+l the Clerk of the Courts. ,,,1\I\\IIUU11111l•· Copies to: David Natan, Esq. 0~ ~~ Qtl~v,~ ~ . . ~lbert J. Mei~ri.~.q. _ Patricia Dunlevy-Williams, Esq. John P. Stengel, Esq.~ o"v o~'I-~ i'ir· ~~··. ~ ,(. · tr·· Mifb:·~t~-- -~~-A;· .:-?,.··'"·,!~'\~ · "" .w~-- "?!- ~·"Jl!f £l;; g__,~ • '
Children and Youth Agency (2) 'l;._,,t~~...;.~~,,,~ Jacquelyn E. Pfurs1ch E • t-, ,, Mother ) cJt'\ ~ Clerk of Courts J ,. J.., 1, Father ~v,..).e..