J-S27031-15


    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN THE INTEREST OF: A.C., A MINOR                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

APPEAL OF: A.C., FATHER                            No. 2723 EDA 2014

                 Appeal from the Order entered August 19, 2014,
       in the Court of Common Pleas of Philadelphia County, Family Court,
         at No(s): CP-51-DP-0001680-2013, FID No. 51-FN-003321-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED AUGUST 13, 2015

        A.C. (“Father”) appeals from the order entered in the Philadelphia

County Court of Common Pleas adjudicating dependent his daughter, A.C.

(“Child”), born in April of 2013, and finding he perpetrated child abuse

against her.1 Father argues the court erred in finding he physically abused

Child, alleging Child “did not suffer severe pain” and “the injuries to [her]

were accidental.” Father’s Brief at 8, 9. We affirm.

        The trial court set forth the factual and procedural history as follows.

           On August 3, 2013, [the Philadelphia Department of

* Former Justice specially assigned to the Superior Court.
1
  At the time of the hospital visit precipitating this matter, Child was four
months old. At the time of the adjudication hearing, she was one year and
four months old.    By separate order, the trial court also adjudicated
dependent L.C., Father’s three-year-old daughter. Father did not appeal
from that order.

G.R. (“Mother), the mother of Child and L.C., took an appeal from both
children’s adjudication orders. This Court affirmed at Interest of L.C., 2689
EDA 2014 (unpublished memorandum) (Pa. Super. Aug. 10, 2015).
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           Human Services (“DHS”)] received a Child Protective
           Services . . . report, which alleged that Mother took
           Child,[2] a 4 month old, to St. Christopher’s Hospital for
           Children (“Hospital”) because Child was bleeding from her
           mouth. While at Hospital, Child received an evaluation,
           which revealed that Child sustained rib fractures on her left
           and right side, which were in the healing stage,
           hemorrhage of her left eye, a laceration across the entire
           floor of her mouth, and an abrasion on her cheek. [N.T.,
           8/19/14, at 11.] Subsequently, doctors admitted Child to
           Hospital.

           [The following day, o]n August 4, 2013, DHS spoke to
           parents at Hospital and parents were unable to provide an
           explanation for Child’s injuries.     On August 5, 2013,
           Mother told DHS that Father frequently squeezed Child in
           an attempt to relieve her body of gas.          Mother also
           explained to DHS that the rib fracture might have
           happened when Child fell off the bed about a month ago or
           from [her sister, L.C.,] sitting on Child’s back while
           playing. [Id. at 14.] Mother stated, to DHS and to Dr.
           [Maria] McColgan (“Doctor”), [the Medical Director of the
           Child Protection Program at Hospital,3] that Father
           scratched Child’s mouth with his fingernail while
           attempting to insert a pacifier in her mouth. Initially,
           Mother explained that Father called Mother while she was
           away from the home and told her that Child needed to go
           to the hospital because Father was unable to stop her
           mouth from bleeding. [Id. at 12-13.] However, Doctor
           testified that when [he] spoke to Mother, [she] told [him]
           she was at home when . . . Father reached behind him to
           put Child’s pacifier in her mouth and that is how the
           laceration happened. [Id. at 13.] Father corroborated
           Mother’s explanation regarding how the incidents occurred.
           Doctor testified that [he] explained to Mother that the type
           of injury Child sustained, posterior rib fractures, were
           unlikely from someone squeezing Child and not a result of
           a direct blow or . . . a fall. After Doctor gave this

2
 In its opinion, the trial court referred to Child as “Child #1” and her sister
as “Child #2.” For ease of discussion, henceforth we refer to A.C. as “Child”
and refer to L.C by her initials.
3
    N.T. at 9.


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         explanation, Mother immediately responded, “I knew it
         was him.” [Id. at 15.] Mother then stated . . . Father
         would sometimes try to help Child’s stool when she was
         having trouble by squeezing on her abdomen. [Id. at 15,
         32-33, 45.] Doctor diagnosed the inflicted injury as . . . a
         result of physical abuse because the injuries . . . would not
         have been from just pressing on the abdomen, someone
         would have to be squeezing the ribcage in order to create
         the fractures Child sustained. [Id. at 15, 19.] Doctor also
         testified that some of the injuries occurred at separate
         times. [Id. at 19.] On August 7, 2013, DHS learned that
         Hospital determined that Child’s injuries were non-
         accidental.

         On August 8, 2013, DHS obtained an Order of Protective
         Custody (“OPC”) and the Hospital discharged Child and
         [L.C.] into the care of their aunt and uncle. On this day, a
         Safety Plan was implemented in the home of the children’s
         aunt and uncle. The Safety Plan stated that the children’s
         parents were not to have visitation with the children for 21
         days and that the aunt and uncle would ensure that the
         children’s basic needs, including medical appointments,
         were met. On August 9, 2013, a shelter care hearing was
         held, the OPC was lifted, and the temporary commitment
         to DHS was ordered to stand.

Trial Ct Op., 11/4/14, at 2-3 (citations to record omitted).

      On August 13, 2013, DHS filed separate petitions, for Child and L.C.,

for an adjudication of dependency. One year later, on August 19, 2014, the

court held a hearing, at which the following witnesses testified: Dr.

McColgan, whom Father stipulated was an expert in child abuse, the DHS

caseworker, Father, and Mother.

      At the hearing, the court found both Child and L.C. dependent, 4 and


4
 The Juvenile Act defines a “dependent child” as, inter alia, a child who “is
without proper parental care or control, subsistence, education as required
by law, or other care or control necessary for his physical, mental, or


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found Father perpetrated child abuse against Child.    N.T. at 66.   The trial

court found “both parents were the children’s primary caregivers” but “found

child abuse as to Father only.” The DHS caseworker informed the court the

parents have, on alternating Saturdays, supervised visits and unsupervised

visits. N.T. at 67. She confirmed to the court there were “no issues” with

the unsupervised visits and the court permitted them to continue. Id. at 68,

74.   She further advised the court that a family service plan was already

“scheduled,” both parents completed several training programs,5 and DHS

was awaiting “the results of the parenting capacity evaluation that both

parents have completed.” Id. at 70-71. The parents were also referred to a

housing program which “assist[s] parents in locating housing,” because “the

house is not appropriate.”6 Id. at 73.

      On September 15, 2014, Father timely filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).



emotional health, or morals.” 42 Pa.C.S. § 6302(1).         Father does not
challenge the adjudication of dependency.
5
  Specifically, Father “completed anger management, parenting and healthy
relationships.” N.T. at 74. Mother “completed parenting, employment
services, empowerment group[,] anger management,” and “healthy
relationships.” Id. at 73.
6
  DHS caseworker Lissa Varghese testified the home was “not safe” because
six adults and one child were living in the home in June of 2014, there was
“high traffic” and the “children sustain [unexplained] injuries in the home.”
Id. at 35-36.



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        On appeal, Father does not challenge the underlying adjudication of

dependency.     Instead, he raises one question for our review: whether the

trial court abused its discretion in finding he physically abused Child. 7            In

support, he first asserts Child did not suffer severe pain.               While Father

concedes     “Dr.     McColgan   testified   [Child’s]   rib   fracture   would    cause

significant pain,” Father avers the doctor also “indicate[d] it’s subjective to .

.   .   determine     how   much    pain     someone     else,”   especially   a   child,

“experiences,” and thus Dr. McColgan “could not establish the level of pain

suffered by” Child. Father’s Brief at 8. Father maintains there is no history

of child abuse or “even the slightest hint [he] intended to harm his child.”

Id.     He further reasons that “doctors must report child abuse in any case

where . . . abuse is even suspected,” and thus “many ‘suspected’ cases are

erroneous.”     Id.    Father’s second argument is that Child’s injuries “were

accidental.” Id. at 9. He points out “[M]other took [Child] to the hospital

after noticing injury” and he “also went to the hospital to help his child.” Id.


7
  We note the argument section of Father’s brief, at one and a half pages in
length, fails to cite legal authority beyond a one-sentence definition, from
Interest of K.M., 53 A.3d 781 (Pa. Super. 2012), of “clear and convincing
evidence.” See Father’s Brief at 8-9. Furthermore, the relevant statement
in Interest of K.M. pertained to termination of parental rights, an issue not
present in this case. See Interest of K.M., 53 A.3d at 786 (“The burden is
upon the petitioner to prove by clear and convincing evidence that its
asserted grounds for seeking the termination of parental rights are valid.”).

We remind Attorney Rosenbaum that the failure to develop an argument
with citation to and analysis of relevant authority may waive an issue on
appeal. See Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270, 1279 (Pa.
Super. 2005).


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Father insists he “had no way of knowing about these injuries.” Id. We find

no relief is due.

      Our Supreme Court has stated:

         “[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.”
         We review for abuse of discretion.

Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citation omitted).

            To 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. “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 A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (some citations omitted).

      Section 6303(b)(1) of the Child Protective Services Law8 defines “child

abuse” in pertinent part as follows:


8
  The version of Section 6303 cited was effective at the time of the
underlying adjudication order. See 23 Pa.C.S. § 6303 (valid through
December 31, 2014).


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             (i) Any recent act or failure to act by a perpetrator
          which causes nonaccidental serious physical injury to a
          child under 18 years of age.

                                   *    *    *

             (iii) Any recent act, failure to act or series of such acts
          or failures to act by a perpetrator which creates an
          imminent risk of serious physical injury to or sexual abuse
          or sexual exploitation of a child under 18 years of age.

23 Pa.C.S. § 6303(b)(1)(i), (iii). “Nonaccidental” is defined as “[a]n injury

that is the result of an intentional act that is committed with disregard of a

substantial and unjustifiable risk.”     23 Pa.C.S. § 6303(a).       In addition,

“serious physical injury” is defined as “an injury that (1) causes a child

severe pain; or (2) significantly impairs a child’s physical functioning, either

temporarily or permanently.” Id.

        On March 25, 2014, subsequent to the trial court’s underlying

dependency order, our Supreme Court decided Interest of L.Z., in which it

held:

          While a petitioning party must demonstrate the existence
          of child abuse by the clear and convincing evidence
          standard applicable to most dependency determinations,
          42 Pa.C.S. § 6341(c) . . . the identity of the abuser
          need only be established through prima facie
          evidence in certain situations[ pursuant to 23 Pa.C.S. §
          6381(d).]

Interest of L.Z., 111 A.3d at 1174 (emphases added).

        We note the following discussion by the Court:

          [C]hild abuse cases often involve a child presenting to a
          hospital with significant injuries that are entirely consistent
          with common types of child abuse and entirely inconsistent


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         with the implausible explanations concocted by the parents
         and responsible persons to avoid allegations of child
         abuse. . . . As the children may be too young or fearful to
         describe the abuse, CYS agencies are left to prove their
         case with only the physical evidence of injuries that would
         not ordinarily be sustained but for the action of the parents
         or responsible persons and the implausible statements of
         the parents and responsible persons. . . .

Id. at 1171.

      The Court further held the presumption was rebuttable by the parent:

            The parent or responsible person may present evidence
         demonstrating that they did not inflict the abuse,
         potentially by testifying that they gave responsibility for
         the child to another person about whom they had no
         reason to fear or perhaps that the injuries were accidental
         rather than abusive. The evaluation of the validity of the
         presumption would then rest with the trial court evaluating
         the credibility of the prima facie evidence presented by the
         CYS agency and the rebuttal of the parent or responsible
         person.

Id. at 1185.

      In the instant case, the trial court specifically found “[a]ll of DHS’

witnesses credible.” Trial Ct. Op. at 5. In finding Child’s rib injuries were a

result of abuse and not accident, the trial court stated the following.

         [T]he Doctor’s testimony established that the injuries Child
         sustained would not occur by someone just pressing on
         her abdomen, someone would have to be squeezing the
         ribcage in order to create the fracture. [N.T., 8/19/14, at
         15.] The explanations the parents gave, that the fractures
         were caused either by Child falling from a bed or by L.C.
         sitting on Child’s back, are not consistent with the injuries
         Child sustained. The Doctor testified that Child would have
         cried when the event occurred that fractured her ribs. . . .
         Parents were never able to explain Child’s injuries in a way
         consistent with the type of injuries [she] sustained.
         Furthermore, the Doctor testified that the type of rib


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         fractures Child had are a type . . . that do not occur from
         an accidental injury. [Id. at 26.] Child had multiple rib
         injuries[:] lateral rib fractures and fractures on the left
         side still . . . healing. [Id. at 13-14.] The rib fractures
         [were] a serious injury causing significant on-going pain to
         Child. [Id. at 14, 17-18, 27.] Father also testified that in
         order to relieve Child of gas pains, he would push on her
         abdomen.       [Id. at 45.]    Mother had said that Child
         sometimes cried when . . . Father squeezed on her
         abdomen. Father testified that no doctor ever instructed
         him to push on Child’s abdomen to relieve gas pains. [Id.]

Trial Ct. Op. at 4-5 (some record citations omitted).

      With respect to Child’s eye and mouth injuries, the court opined:

         The Doctor testified that the hemorrhaging in the right eye
         was also from trauma and that an infant, such as Child,
         would not be able to self-inflict this type of injury to her
         own eye. [N.T. at 16, 18.] The Doctor also testified that
         the laceration to Child’s mouth would not occur from an
         ordinary fingernail scratch, the laceration was across the
         entire floor of the mouth and deep under her tongue.
         Significant amount of force would be required to cause
         such an injury. [Id. at 24.] There were six other adults
         and three other children who live with parents[,] Child and
         [L.C.] Father testified that no other adult[ ] who lives in
         the house witnessed the injury to the mouth.

Trial Ct. Op. at 5.

      The court further noted:

         The injuries Child sustained while under the care of her
         parents could not be explained by her parents, the injuries
         were serious, and caused Child severe pain. The Doctor
         spoke with Mother, and Mother said that Father was the
         perpetrator of Child’s rib fracture by exclaiming “I knew it
         was him” to the Doctor. [N.T. at 15.]

Trial Ct. Op. at 5. The court’s findings are supported by the record.




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      We reject Father’s assertion that Dr. McColgan “could not establish the

level of pain suffered by the child.” See Father’s Brief at 8. Dr. McColgan

testified Child “had bilateral fractures of the 11th ribs” which were

approximately one to three weeks old at the time she was examined. N.T.,

at 11, 14. She testified that a rib fracture “is a serious injury. It would have

caused pain to the child.” Id. at 14. Moreover, Dr. McColgan testified:

              [DHS’ counsel: I]n your opinion, how much pain would
           have Child occurred [sic] when she sustained the rib
           fracture?

               [A.] This would be significant pain. [I]t’s subjective to
           be able to determine how much pain someone else
           experienced. A rib fracture is a fracture of the bone, which
           is typically severe pain.

              [Q.] Would Child cry? Would it be likely that she would
           cry?

              A. It would be likely that she would cry.

Id. at 17-18. Based on Dr. McColgan’s testimony, we discern no abuse of

discretion by the court in finding Child’s bilateral rib fractures were a

“serious physical injury” pursuant to section 6303.          See 23 Pa.C.S. §

6303(a).

      With respect to whether A.C.’s rib fractures were nonaccidental in

cause, Dr. McColgan testified as follows:

              [DHS’ counsel: I]n your professional opinion, would a
           four month-old incur these injuries on her own?

             [A.] No, these are not self-inflicted injuries. At four
           months of age, typically, you’re just learning how to roll



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         over, maybe lifting your head, but you would not have
         enough movement to cause these injuries yourself.

            [Q. I]n your professional opinion, is it likely that a
         four[-]month-old would sustain these injuries without
         some sort of non-accidental trauma?

             [A.] You could have accidental injury, but the accidental
         injuries that were reported would not have accounted for
         all of these injuries, nor were they likely to have caused
         these injuries.

            [Q.] Can you say, to a reasonable degree of medical
         certainty, that [Child’s] injuries were caused by child
         abuse?

            [A.] Yes, my diagnosis was physical abuse.

N.T. at 18-19; see also id. at 24-25. Based on Dr. McColgan’s testimony,

we likewise discern no abuse of discretion by the court in finding that A.C.’s

rib fractures were nonaccidental in cause pursuant to section 6303.

      In addition, Dr. McColgan testified about Child’s mouth injury as

follows. Child had a laceration “across the floor of the mouth, just behind

the gum line,” as well as “hematoma, which is a collection of blood

underneath her tongue.” Id. at 11. This injury was “relatively recent.” Id.

at 12. Mother’s explanation, that Father caused it by putting a pacifier in

her mouth, “should not” have caused the mouth injury.              Id. at 13.

Furthermore, Dr. McColgan replied “Yes,” to the specific question of whether

Child would have “been in pain when she received that injury.” Id.

      Dr. McColgan further testified Child’s left eye had a “subconjunctival

hemorrhage . . . which is a collection of blood in the white portion of the



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eye. . . .” Id. at 11. Dr. McColgan opined the eye hemorrhage was from

trauma, explaining:

         The white part of the eye—you can sometimes see
         hemorrhages there, usually from trauma. You can also get
         them from very severe coughing or very severe vomiting,
         but that’s pretty unlikely in a three month—whatever she
         was—an infant, and there was no report of severe vomiting
         or coughing for [Child].

Id. at 16.    In addition, Dr. McColgan testified there was no biological or

medical reason for Child’s eye hemorrhage. Id. at 16-17.

      Dr. McColgan further testified Child “had abrasions on her face,”

including “a diagonal line across the cheek,” approximately “a half to a

centimeter wide by several centimeters long.” Id. at 11. Dr. McColgan did

not recall if an explanation for these cuts was provided. Id. at 16.

      Significantly, Dr. McColgan testified Child’s injuries were incurred on

“at least two separate episodes:”

         Some of the injuries had to have occurred at separate
         times. The rib fracture was, again, a week to [three]
         weeks old. The scratches on the face and the laceration
         on the tongue and the eye injury were likely relatively
         more recent. . . .

            So, we know there was at least two separate episodes,
         but I can’t tell you that the face injury, the mouth injury or
         the eye injury did or didn’t happen at the same time.

            [Child Advocate: ] But they happened separate from the
         ribs?

             [A.] Yes.

Id. at 19-20.



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      Based on the foregoing testimony of Dr. McColgan, as well as Father’s

and Mother’s explanations for Child’s injuries, we discern no abuse of

discretion by the court in finding Child was the victim of “child abuse”

perpetrated by Father.    See Interest of L.Z., 111 A.3d at 1174.          We

conclude the testimonial evidence demonstrates that Child’s bilateral rib

injuries satisfied the definition of “child abuse” under section 6303(b)(1)(i).

See 23 Pa.C.S. § 6303(b)(1)(i).      With respect to Child’s injuries to her

mouth, left eye, and face, we conclude that the testimonial evidence

demonstrates that she suffered “child abuse” under section 6303(b)(1)(iii),

as they created “an imminent risk of serious physical injury.” Accordingly,

we affirm the adjudication order. See 23 Pa.C.S. § 6303(b)(1)(iii).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/13/2015




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