J-S96015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.C., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: J.B.
                                                     No. 1115 WDA 2016


                 Appeal from the Order Entered June 30, 2016
                 In the Court of Common Pleas of Blair County
    Civil Division at No(s): CP-07-DP-120-2015/FID #07-FN-00065-2015


BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED FEBRUARY 9, 2017

       J.B. (Mother) appeals from the order entered on June 30, 2016, in the

context of a dependency proceeding that resulted in the finding that N.C.

(Child), born in August of 2015, was the victim of child abuse perpetrated by

J.C. (Father)1 and by omission as to Mother.       The order declined to find

aggravating circumstances. After review, we affirm.

       This appeal centers on a petition requesting a finding of child abuse

and a motion for aggravated circumstances filed by Blair County Children

Youth & Families (BCCYF) against both Mother and Father. In Mother’s brief,

she raises the following issues for our review:

       I. Did the [c]ourt commit error in concluding that [M]other J.B.
       committed child abuse by omission thus justifying a founded
       report?

       II. Is the standard of prima facie evidence to establish abuse
       unfair to an individual in the shoes of [Mother] given the
____________________________________________


1
  Father did not appeal from the June 30, 2016 order and is not a party in
the instant matter.
J-S96015-16


      consequences of such a finding and the lack of evidence that she
      had knowledge of such abuse[?]

Mother’s brief at 4.

      Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.

§§ 6301-6375. Moreover, we note that:

      [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 L.V., 127 A.3d 831, 834 (Pa. Super. 2015) (quoting In re A.B., 63

A.3d 345, 349 (Pa. Super. 2013)).

      We have reviewed the certified record, the briefs of the parties, the

applicable law, and the comprehensive opinion authored by the Honorable

Timothy M. Sullivan of the Court of Common Pleas of Blair County, dated

June 30, 2016. We conclude that Judge Sullivan’s thorough, well-reasoned

opinion properly disposes of the issues raised by Mother.   Thus, we adopt

Judge Sullivan’s opinion as our own and affirm the order appealed from on

that Basis.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2017


                                    -2-
                                                                                         Circulated 01/20/2017 09:24 AM




         IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVAN1A


     fN THE INTEREST OF
     N.C., a minor
                                                                     CP-07-DP-120-2015

                                                                     FID#07~FN-00065-2015




    -HON. TIMOTHY M. SULLIVAN                                          PRESIDING JUDGE

    JUSTIN WIIT, ESQUIRE                                               COUNSEL FORBCCYF
    TRACI L. NAUGLE, ESQUlRE                                           COUNSEL FOR MOTHER
    ASHLAN CLARK, ESQUIRE                                              COUNSEL FOR FATHER
    TYLER A. ROWLES, ESQUIRE                                           GUARDIAN AD LITEM


                                          OPINION AND ORDER


           Now before the Court is Blair County Children Youth & Families' ("BCCYFn or

    "Agency")    Petition   for Finding of Child Abuse and Motion                 for Aggravated

    Circumstances regarding N.C. (D.O.B. 8/f/15)1• For the reasons explored herein, this

    Court finds that N.C. suffered abuse under the custody of his parents, J.C. and J.B. This

    Court also finds that J.B. and J.C. perpetrated the abuse. However, we find that the abuse

docs not support a finding of aggravated circumstances.




IThis dependency case is also connected with a matter involving J.B. 's daughter, L.B.
For the purposes of this opinion, however, we wiJJ not address issues involving L.B.
                                            1
                                 i       I -- · - · . -~   .1 /\ .
                                 \   '     I \   ! )\ '
    -       -   ---~~----~------                               -·----
        PROCEDURAVFACTUAL              HIS1'0RY2

                 The allegations of abuse inflicted upon N.C. begin with a doctor's visit on

        September 30, 2015. On that day, J.B. took N.C. to Nason Hospital for a sick visit with

        Joseph Castel, M.D. [Feb 12 N.T., p.201. 13-21]. Dr. Castel is a general pediatrician at

     Nason who has practiced for twenty-three (23) to twenty-four (24) years. [Feb 12 N.T.,

     p. 19]. At the February 12 hearing, this Court qualified Dr. Castel as an expert in

    pediatric medicine.

                N.C. presented to Dr. Castel at Nason Hospital with a number of injuries that Dr.

    Castel believed to be consistent with child abuse.3 fN.T. Feb 12, p. 40]. Specifically, Dr.

    Castel found rib fractures, both recent and in various states of healing and an injury to

    N .C. 's upper lip frenulum. Based upon this presentation, Dr. Castel reported the injuries

    to BCCYF and scheduled a child abuse consult ("CAC') with Children's Hospital of

    Pittsburgh. [N.T. Feb 12, p. 38]. A later follow up appointment with Dr. Castel on

    February 7, 2016, while the Agency had custody of N.C., revealed no further injuries or

    developmental delays. [N.T. Feb 12, p. 40].

                On October I, 2015, N.C. presented at the Children's Hospital of Pittsburgh

 emergency department.            [N.T. Feb 12, p. 56].    Dr. Jennifer Clarke, a pediatrician

 specializing in child abuse, examined N.C. [N.T. Feb 12, p. 57]. J.C. and J.B. provided

Dr. Clarke with N.C.'s medical history, explaining that N.C. recently had a respiratory

infection. [N.T. Feb 12, p. 72]. Dr. Clarke then performed a full examination of N.C.,

finding rib fractures in various states of healing, an upper lip frenulum injury, "bucket-

handle" fractures of the legs; and a Grade 2 liver laceration.        [N.T. Feb 12, p. 58~65].


2
  The amount of testimony received in this case is voluminous=-we therefore set forth
only a brief factual history here. Extended discussions of the testimony are provided in
the Discussion, infra.
3
  The discovery of these injuries as well as their severity is detailed in our Discussion,
infra.
                                                 2
  When asked about these injuries, J.C. provided a number of explanations. [N.T. Feb 12,

  p. 71-811, According to Dr. Clarke, J.B. appeared puzzled by some of these explanations,

  but supported some of J.C. 's contentions. Id, It is Dr. Clarke's professional opinion that

  N.C. suffered child abuse and none of the explanations provided by J.C. and J.B. account

  for N .C. 's Injuries. [N.T. Feb 12, p. 79-81, 85]. Dr. Clarke believes that, in the totality

 of the circumstances, a reasonable person would have known that N .C. was hurt at the

 time any one of N.C/s injuries occurred. [N.T. Feb 12, p. 85). A follow up examination

 on October 13, 2015, after the Agency took custody of N.C., showed no new injuries.

 [N.T. Feb 12, p. 86-87].

         The Agency commenced          the instant matter by filing an Application         for

 Emergency Protective Custody on October 1, 2015. The Court granted this Application

 on the same day, issuing an Order which plnced both legal and physical custody of N.C.

 with the Agency. The Agency subsequently filed a Dependency Petition on October 2,

2015, and the Court appointed Tyler A. Rowles, Esquire to represent N.C. 's interests and

Traci L. Naugle, Esquire to represent J.B. On December 18, 2015, the Agency filed a

Motion for Aggravated Circumstances alleging that they received an indicated report of

child abuse nam.ing J.C. as the perpetrator and J.B. as a perpetrator through aggravated

physical neglect.

        The Court placed N.C. in shelter care on October 15, 2015 and declared him

dependent on October 30, 2015. Both children currently remain in foster care, under the

legal and physical custody of the Agency. J.B. 's parents, T.B. and P.B., filed Petitions to

Intervene on January 21, 2016. The Agency answered these Petitions on February 7,

2016, recommending that the Court deny them for lack of standing pursuant to the

Juvenile Act. The Court denied that Petition by Order of Court on March 14, 2016. We




                                             3
                                           ----·---····~-




 also directed the paternal grandparents, J.C and T.C., to take all necessary remaining

 steps to be approved as Kinship Fosler Parents.

        Relative    to   the     pending    Petitions   and   Motions,   this   Court   held

 Permanency/Dispositional review on February 12 and March 7, 2016. At these hearings,

 this Court received testimony from Dr. Castel, Dr. Clarke, caseworkers from the Agency,

and J.B. We then directed the parties to file memoranda of Jaw relative to the Petition for

Finding of Child Abuse by March 31 J 2016. Having received memoranda from the

Agency, Mother, and the Guardian-Ad-Litem, we are prepared to dispose of the child

abuse allegations pertaining to N.C.

        We now proceed to disposition.

APPLICABLE LAW

       Under Pennsylvania law, findings of child abuse are regulated by the Child

Protective Services Law ("CPSL11).     23 Pa. C.S.A. § 6301 et seq. The CPSL puts forth

the definition of child abuse in this Commonwealth:

               (h.l) Child abuse--The    term "child abuse" shall mean
               intentionally; knowingly or recklessly doing any of the
               following:

              (1) Causing bodily injury to a child through any recent act
              or failure to act.

                                  *             *             *
              (5) Creating a reasonable likelihood of bodily injury to a
              child through any recent act or failure to net.

                                                              *
                               23 Pa. C.S.A. § 6303{b,l) (in part).




                                            4
          "Bodily injury," as used in the CPSL, means "impairment         of physical condition or

 substantial pain." 23 Pa, C.S.A. § 6303. This definition is considerably broader than the

 old requirement of "serious bodily injury," which was defined as "an injury that: (J)

 causes a child severe pain; or (2) significantly impairs a child's physical functioning,

 either temporarily   01·   permanently ." 111 re L.Z., 11 J A.3d 1164, 1168 n, 3 (Pa.2015).

          For this Court lo sustain a finding of child abuse, the Agency must present clear

and convincing evidence thar (1) the alleged abuse occurred and (2) the person accused

perpetrated the abuse. 42 Pa. C.S.A. § 634l(c); L.Z. .. 111 A.3d nt 1176. However, a

parent   01·   other person responsible for the welfare of the child may be found to have

perpetrated the child abuse based upon prima facie evidence:

                  (d) Prima facie evidence of abuse--Evldeuce 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. § 638l(d),

         The presumption under Section 6381 (d) is rebuttable and allows those accused

parents or other persons responsible for the welfare of the child to present evidence that

they did not commit the abuse or they were not responsible for the welfare of the child.

L.Z., 111 A.3dat 1185.

         Under the Juvenile         Act, Pennsylvania courts may find that aggravated

circumstances in dependency such that the subject child should be removed from the

custody of the parent or custodian:




                                                  5
                                  -----~~-~--------·---



               (e) Permanency hearings-

                                  *                     *
               (2) lf the county agency or the child's attorney alleges the
               existence of aggravated circumstances and the court
               determines that the child has been adjudicated dependent,
               the court shall then determine ii' 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 the child's
              parent, guardian or custodian or to preserve and reunify the
              tinnily shall be made or continue to be made and schedule a
              hearing , . ,

                             42 Pa. C.S.A. § 6351(e)(2).

Our Legislature specifically provides that child abuse may rise to that
level:

              "Aggravated circumstances."                   Any of the following
              circumstances:

                                            *                       *
             (2) The 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 the
             parent.


                              *                     *        *      *
             "Aggravated physical neglect," Any omission in the care
             of a child which results in a life-threatening condition or
             seriously impairs the child's functioning.


                             *          *           *        *     *
            "Serious bodily injury," Bodily injury which creates a
            substantial risk of death of which causes serious, permanent
            disfigurement or protracted loss or impairment of the
            function of any bodily member or organ.

                                      42 Pa. C.S.A. § 6303.

                                                6
 DISCUSSION

         We must now determine the merits of the Agency's Petition for Finding of Child

 Abuse and Motion for Aggravated Circumstances. This Court shall address each issue

 separately.

     I. CHILD ABUSE FINJHNGS

         Before the Court are three interlocked questions: (1) whether N.C. suffered child

 abuse; (2) if N.C. suffered abuse, whether J.C. perpetrated the abuse; and (3) if N.C.

 suffered abuse, whether J.B. perpetrated the abuse by omission. We shall address each of

 these questions in turn.

        A.      The Alleged Abuse of N.C.

        Based upon the presentations of Dr. Castel and Dr. Clarke, this Court finds that,

by clear and convincing evidence, N.C. suffered child abuse. We shall address each of

the injuries N.C. suffered in tum.

                1.      The Rib Fractures

        During the September 30th visit, Dr. Castel noted a "visible deformity" on N.C. 's

rib cage that was immediately identifiable. [Feb 12 N.T., p. 26-28). Dr. Castel palpated

these deformities, feeling for any crackles or crepitations in the rib cage. [Feb 12 N.T., p.
                                                                                       /1),l,>6
45-46]. Based upon that examination, Dr. Castel ordered X-ray radiographs of               C
chest, which showed multiple areas of callous formation indicating healing fractures.

[Feb 12 N.T., p. 32]. In Dr. Castel's opinion, these fractures would only be possible from

child abuse or a major unrestrained motor vehicle accident. [N.T. Feb 12, p. 36, 40].

       Dr. Castel testified that the fractures would have caused N.C. a great deal of both

pain and distress, which would have presented with fussiness and crying. [N.T. Feb 12,

37-38, 40]. He also testified that the callouses became so thick that they lifted N.C.'s
                                             7
 skin.     [N. T. Feb 12, p. 35). Dr. Castel testified that he had previously only seen such

 fractures after performing cardiac pulmonary resuscitation on infants.     [N.T. Feb 12, p.

 34-35].

           Dr. Clarke also found multiple rib fractures on N.C. in various slates of healing,

 some having calloused into hard lumps and others presenting without callouses. [N.T.

 Feb J 2, p. 62-63]. Dr. Clarke specifically testified that the forces necessary to create

 these types of fractures are "well out of the realm of reasonable in caring for an infant"

 and could not have occurred through normal handling. {N.T. Feb 12, p. 79-81]. She also

 testified that these injuries would have caused the child substantial pain and N .C. would

 have manifested the pain in such a manner as to let any reasonable person know that he

 was significantly injured. [N.T. Feb 12, p. 84-85]. We note that Dr. Clarke could not put

a timeframe on how long N.C. might have manifested this pain. Id. However, Dr. Clarke

was able to determine that N.C. 's healing fractures were at least three weeks old and his

acute fractures occurred less than a week before the examination. [N.T. Feb J 2, p. 63].

         X-ray radiographs taken by both Dr. Castel and Dr. Clarke also confirmed the

presence of fractures.     Dr. Castel and his coordinating radiologist found five total

fractures on N.C., noting multiple areas of callous formation around multiple ribs. (N.T.

Feb 12, p. 33-34, 62]. Dr. Clarke found three healing fractures on N.C.>s right side, as

well as five acute fractures=-one on his right side and four on his left side. (N.T. Feb 12,

p. 62). Dr. Castel's radiologist specifically remarked that these injuries were "highly

suspicious for non-accidental trauma." (N.T. Feb 12, p. 33].




                                             8
          In both Dr. Castel and Dr. Clarke's professional opinions, these fractures were the

  result of child abuse.   [N.T. Feb 12, p. 40, 62-63, 85]. Dr. Clarke specifically stated that

 these fractures may have occurred by direct trauma or by a squeezing/compression

 mechanism, all well outside what could be considered normal handling of an infant.

 [N.T. Feb 12, p. 63-64].

         We also note that Dr. Castel and Dr. Clarke discounted all of the· explanations

 provided by J.C. and J.B. When told about the rib fractures, J.C. explained that N.C. fell

 off a couch onto a hardwood floor recently and also that he heard a pop after pushing on

 N.C. 's chest to help him clear thick mucosa and formula. [N.T. Feb 12, p. 76-78].

 However, both physicians repeatedly stated that the amount of pressure and force

 required to generate a rib fracture is much greater than either of the incidents could

 produce. [N.T. Feb 12, p. 34, 62-64].       Dr. Clarke took particular exception to another

 explanation proffered by J.C., wherein N.C. allegedly fell from J.C/s a1111s and J.C.

managed to catch N.C. by his chest before N.C. hit the floor. [N.T. Feb J 2, p. 63-64, 75].

In this instance, Dr. Clarke found it unusual that J.C. would catch N.C. by his chest and

also opined that the amount of force generated by such an incident would be well short of

the force necessary to generate db fractures. Id.

        This Court notes the absence of a reasonable explanation regarding N .C.' s severe

injuries based upon both the physicians' testimony and J.B.'s testimony. J.B. testified

before this Court that she and J.C. were N.C.,s primary caretakers lN.T. Mar 7, p. 131-
                                                             .       .
33). J.B. cared for N.C. nearly around-the-clock from birth until N.C. was five ..-
                                                                                        we..~--k;,

old-J.B. and J.C. then transitioned into a twelve hour schedule, wherein J.B. would

watch N.C. during the clay while J.C. worked and J.C. would watch N.C. during the night

while J.B. worked. [N.T. Mar 7, p. l28-33J. The only other persons who were around

                                              9
 during the first five weeks of N.C.'s life were J.B.'s parents, one of whom testified that

 he was not involved ill N.C.'s care and J.C. and J.B. performed almost all ofN.C.'s care.

 [N.T. Mar 7, p. 148-52].

         Based upon all the circumstances and evidence presented before this Court, fil

 find that clear and convincing evidence that N.C. 's rib fractures constitute child abuse

 under the CPSL. Both physicians testified that these injuries constitute child abuse and

 neither parent could explain how the child suffered these injuries by any other means.

 We also note that these injuries placed N,C, in substantial pain and represent a systematic

failure to care for N.C. Therefore, based upon the evidence presented, we find that

N .C, 's rib injuries constitute child abuse under the CPSL.

                2,     Frenulum Injury

        Both physicians also found an injury to N.C.'s mouth.       Specifically, Dr. Castel

discovered that the frenulurn between N.C.'s top two teeth showed signs of trauma.

[N.T. Feb 12, · p. 27J.     In his medical opinion, the injury was an old hematoma,

approximately one quarter inch in length. [N.T. Feb 12, p. 28~29], Dr, Castel believed

that N .C. suffered the injury approximately one week earlier, Id.         The injury was

concerning to Dr. Castel-considering     the child's age and development, a hematoma of

this nature is most likely inflicted by blunt force and the amount of blood the injury

generates should alert caretakers that the child requires immediate attention. [N.T. Feb

12, p. 29-30]. Dr. Castel also testified that the child could not have inflicted the injury

upon himself, [N.T. Feb 12, p. 31). Such an injury, in Dr. Castel's opinion, would cause

substantial pain for at least a few days and present acutely when feeding the child a

bottle. [N.T. Feb l 2, p. 38). Dr. Castel firmly believes that this injury is the result of

child abuse. [N.T. Feb 12, p. 40].



                                             10
         Dr. Clarke also found the frenulum        injury, along with bruising on N.C.'s right

  cheek and lip. (N.T. Feb 12, p, 58].     Tn her medical opinion, the injury would have been

 noticeable by the blood loss alone.        [N.T. Feb 12, p. 59). While Dr. Clarke did not

 describe the injury in detail, she did indicate that the child could not have cut his own

 frenulum and the injury could have been inflicted by grabbing the child's face and

 shoving a hard object (e.g, a bottle) into his mouth. Id. Dr. Clarke unequivocally believes

 that this injury is the result of child abuse. [N. T. Feb 12, p. 85].

         J.C. attempted to explain the nature of this injury to Dr. Clarke, stating that N.C.

 enjoys his pacifier and also hits himself in the face and mouth. lN,T. Feb 12, p. 80].

 According to J.C., he turned away from N.C. during one of these episodes and reemerged

 to find N .C. with a finger in his mouth. Id. When J.C. removed the finger, he noticed

 some blood and held a napkin under N.C.'s mouth until the bleeding stopped. Id. Dr.

Clarke discarded this explanation as not credible. [N.T. Feb 12, p. 81].

        J.B. presented a different explanation of this injury. According to her1 J.C. caJled

and stated that he saw a little bit of blood in N.C.'s mouth after removing a bottle. [N.T.

Mar. 7} p. 134]. J.B. then asked whether N.C. 's mouth was overly bleeding and J.C.

responded that it was only a "little bit and that he had got a cold bottle and had put it in

his mouth to kind of like help it." Id. J.B. then told J.C. she would be home as soon as

possible and arrived home to find no swelling, bruising, or bleeding. Id,

       This Court finds that the frenulum injury was the result of child abuse. We once

again find the testimony of Dr. Castel and Dr. Clarke credible in all respects and believe

that this injury could not have been self-inflicted. The explanations provided by both J.B.

and J.C. are entirely inconsistent and fail to explain how N.C. could have received an

                                              J1
     injury mostly likely caused by blunt force trauma. While it is possible that removing the

     bottle from N.C.'s mouth may have caused an injury, both physicians testified that the

     amount of blood generated by such a hematoma would alert any caretaker that the child

     required medical attention.      DJ'. Casie) also remarked that the child would be in a

     substantial amount of pain for a few days and would not take a bottle without pain.

     Based upon the testimony presented. this Court finds that N.C.'s frenulum injury

    constitutes chi1d abuse under the CPSL.

                     3.      J.,eg Fractures

              In the course of the child abuse consult, Dr. Clarke also found "bucket-handle"

    fractures on N .C. 's legs. "Bucket-handle" fractures, or classic metaphyseal lesions, are a

    series of micro-fractures along the ends of the bones, which present in a bucket handle

    shape on Xray radiographs.        [N.T. Feb 12, p. 67-68]. Dr. Clarke testified that these

    injuries are "highly specific for child abuse" and do not occur with normal care-v-rafher,

    they are typically seen with a yanking or jerking motion, as well as with flailing of the

    legs."    [N.T. Feb 12, p. 68]. While Dr. Clarke could not date the injuries exactly, she

    opined that the fractures were noticeable and probably acute to subacute. fN.T. Feb 12,

p. 68-69]. Dr. Clarke also stated that N.C. became fussy when she touched his lower

right leg. [N.T. Feb 12, p. 69]. In her medical opinion> Dr. Clarke states that these

injuries would have caused N.C. substantial pain and any reasonable person should have

known that he was injured. Id. TI1e parents could not explain these injuries,

             Dr. Clarke also ruled out any type of disease or other diagnosis that would

possibly cause bone malformation, specifically osteogenesis imperfecta (brittle bone

disease).       (N.T. Feb 12. p. 81].          In her medical opinion, Dr. Clarke stated that


4 Dr. Clarke also testified that this injuries can result from c]ub foot repair or by pulling
on the legs during chi1d birth. However: she excluded these possibilities because J.B.
stated that the child was pulled by his chest during birth. [N.T. Feb 12i p. 71].
                                                   12
  osteogenesis   imperfecta   would result in mid-shaft diaphyseal     fractures when the child

  begins to walk, unlike the end of shaft fractures seen on N.C. 's X~Ray radiographs.    lN,T.

  Feb I 2: p. 82].    Dr. Clarke also found no other diagnostic symptoms for osteogenesis

  imperfecta.    [N. T. Feb 12, p, 8 l -82].   Further, Dr. Clarke also noted that osteogenesis

  imperfecta would not explain the other injuries suffered by N.C. [N.T. Feb 12, p. 82-83].

         This Court finds that N.C.>s leg injuries were a result of child abuse. We find Dr.

  Clarke's testimony credible in all respects regarding the "bucket-handle" fractures, which

 me highly specific for child abuse and could not be explained by either parent. While

 J.B. argues that these injuries could have resulted from childbirth, there is no evidence

· that n physician or other person pulled N.C.'s legs to assist in birth, We also note that

 N.C. would have been in substantial pain and any reasonable person should have known

 that N.C. was injured. Based upon the testimony p,resented, this Court finds that N.C. 's

 leg iniul'ies constitute child abuse under the CPSL.

                 4.      Liver Laceration

        Dr. Clarke also found, through a computerized tomography (CT) scan, that N.C.

suffered a liver laceration. [N.T. Feb 12, p. 64]. In her medical opinion, the severity of

the laceration was a Grade Two out of four. [N.T. Feb 12, p. 65]. This finding alarmed

Dr. Clarke because N.C. had no history of significant accidental trauma aud this injury is

typically caused by blunt force trauma to the beJly. Id. Dr. Clarke testified that punching

or other unilateral forces typically cannot cause this type of injury-instead, the force is

applied as stomping or another really significant force where the child is on a hard

surface. [N.T. Feb 12, p. 65-66).       Dr. Clarke also stated that the only symptom N.C.

would have exhibited is fussiness and the same trauma that caused the rib fractures could

have cause the liver laceration. [N.T. Feb 12, p. 93-94]. However, Dr. Clarke cautioned

that the rib fracture alone could not have caused the laceration. [N.T. Feb 12, p. 94]. In

                                               13
   her medical     opinion,   Dr. Clarke slates that N.C. would have been in substantial   pain

   when this injury was inflicted and any reasonable person should have known the child

   was injured.    [N.T. Feb 12, p. 66-67].

            Dr. Clarke also discounts any of the explanations provided by J.C. regarding this

  injury. Similar to the rib fractures, Dr. Clarke indicated that J.C. could not have inflicted

  the liver laceration by catching N.C. by his chest, by pushing on N.C/s chest while

  placing him in his car seat, or through N.C.'s alleged fall from the couch. (N.T. Feb 12)

  p. 75-76, 79-81). J.B. indicated that she was unaware of this injury.       [N.T. Mar 7, p.

  137]. In DJ'. Clarke's medical opinion, these injuries were the result of child abuse.

  [N.T. Feb 12, p. 85].

           TI1is Court finds tbat the liver laceration N.C. suffered was the result of child

 abuse.     In the absence of any other explanation and taking into consideration the

 significant forces required to generate such an injury, we find that the only explanation

 for this injury is a blunt trauma force exerted upon the child. We are especially cognizant

 of Dr. Clarke's testimony that this injury is typically caused by some type of stomping   01·


 other trauma exerted while the child is against a hard surface.            Dr. Clarke also

specifically stated that such an injury would have caused N.C. substantial pain. Based

upon the testimony presented, this Court finds clear and convincing evMence that N.C. 's

liver Jaceration constitutes child abuse under the CPSL.

                  5.      Conclusion

          Based upon the testimony presented, this Court finds that N.C. suffered child

abuse. The testimony of Dr. Castel and Dr. Clarke, which this Court finds credible in all

respects, shows that N.C. suffered a litany of injuries that are inconsistent with the

normal care of an infant. It is clear to the Court that these injuries placed N.C. in

substantial pain. We also find that the explanations proffered by the parents are entirely

                                              14
_.... ........._ ..   -~---..     .   __ ...   ____._   ... ~---



                                  inconsistent with the expert findings and fail to explain any of the injuries N.C. suffered.

                                  The Court finds that the expert findings and opinions, in combination with the lack of any

                                 reasonable explanation by the parents, constitutes clear and convincing evidence that

                                 N.C. 's injuries are the result of child abuse.

                                               B.       J.C. As An Alleged Pe~·pett·ator

                                               This Court must now determine whether J.C. perpetrated the abuse against N.C.

                                 We find, preliminarily, that because (I) J.C. is one of N.C. 's parents and (2) N.C.

                                 suffered abuse "of such a nature as would ordinarily not be sustained or exist except by

                                 reason of the acts or omissions" of the parents, the Agency presented prima facie

                                 evidence of child abuse by J.C. This presumption is based upon J.B. 's admission that she

                                 and J.C. were N.C.'s primary caretakers from birth until this Court transferred custody to

                                 the Agency. We also find that the second prong is met because of N.C. 's young age, the

                                 lack of other persons present who would have access to him, and the severity of the

                                injuries sustained=-in essence, the Court finds that either J.B. or J.C. inflicted the abuse

                                upon N.C. or failed to protect him from the same. See In re L.Z., 111 A.3d 1164, 1185-

                                86 (Pa. 2015) (finding that medical evidence of penile laceration, cheek bruising, and
                                severe diaper rash and yeast infection "demonstrated that [c]hild's injuries were neither

                                accidental nor self-inflicted and because was onJy in the care of [m]other and [a]unt, the

                                injuries were shown to be a "of such a nature es 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'"). Therefore, the burden shifts from the Agency to J.C., who

                                must present evidence which rebuts this presumption.




                                                                                 15
                                                                                  Circulated 01/20/2017 09:24 AM




             This Court finds that J.C. failed to rebut this presumption    and .1.C. perpetrated

  these acts of abuse upon N.C.        Both physicians testified that the rib and liver injuries

  suffered by N.C. would require a substantial amount of force-specifically,       in the context

  of the liver injury, Dr. Clarke testified that N.C. must have suffered some type of blunt

  trauma to the belly akin to stomping or another significant force. [N. T. Feb. J 2, p. 36,

 65-66].       We find that it is entirely possible that either J.C. or J.B. inflicted these

 injuries-pursuant      to our Supreme Court's decision in L.Z. and the presumption raised by

 Section 6381 (d), we need not identify the individual parent who inflicted the abuse. 111 re

 L.Z., 111 A.3d at J 186 (allowing conclusion that parent "perpetrated abuse on child

 either by inflicting the injuries or failing to protect [cJhild" from a caretaker related to the

 parent).

            This Court also received a great deal of testimony regarding J.C.'s explanations

 for N.C.'s injuries. Dr. Clarke testified that J.C. first explained that N.C. fell from a

 couch. According to J.C., he Jeft N.C. resting on pillow to go gel N.C. a bottle and came

 back to find N.C. o.n the hardwood floor, [N.T. Feb 12, p. 72-73]. According to Dr.

Clarke, it seemed as though J.C. and N.C. were alone during this alleged fall, and J.B.

also could not remember whether she told Dr. Castel about this incident.         [N.T. Feb 12,

p. 73-74). Dr. Clarke discounted this incident from explaining any of the injuries to N.C.,

as the fall described by J.C. could not generate the forces necessary to explain the

injuries. [N.T. Feb 12, p. 75].

        J.C. then proffered an explanation to Dr. Clarke wherein J.C. almost dropped the

child. [N.T. Feb 12, p. 75). According to J.C., N.C. dropped down to J.C.'s knee and

J.C. caught N.C. around the chest before he hit the ground. Id. Dr. Clarke testified that

J.C. did not indicate whether he suspected that the child was injured. Id. In her medical

opinion, Dr. Clarke believes that this could not account for most of N.C. 's injuries,

                                              16
  including   the newer rib fractures, face/lip bruising, frenulum        injury, or the "bucket-

  handle" fractures.   (N.'f. Feb 12, p. 75-76].    Dr. Clarke also indicated that grabbing a

  child around the chest is a strange way to catch a falling child. Id.

         J.C. also explained to Dr. Clarke that he recently pushed on N.C.'s chest to help

  N.C. breathe and heard a pop. [N.T. Feb 12, p. 76-77]. According to J.C., be pushed on

 the child's chest to help him remove some formula and thick mucosa that built up during

 a recent respiratory infection.     ld.   J.C. stated that the child seemed more content

 afterward. (N.T. Feb 12, p. 77]. J.C. could not tell Dr. Clarke how hard he was pushing,

 but stated that he believed he was not using a lot of force and did not believe that the pop

 represented a broken rib. [N.T. Feb 12, p. 77-78J. Dr. Clarke also discounted this

 explanation as unreasonable and outside the normal care or handling of a child.

         Finally, J.C. explained to Dr. Clarke that he and J.B. recently had difficulty

 removing N.C. into his car seat. [N.T. Feb 12, p. 78-79]. According to J.C., he had to

 push on N.C. in order to remove N.C. from the vehicle. Id. J.B. concurred with J.C. and

 told Dr. Clarke how it was to remove N.C. from the seat. [N.T. Feb 12, p. 79]. Dr.

Clarke disagreed with this explanation as well, as placing and removing a child from a

cur seat "should not cause any kind of injuries, Jet alone broken bones." Id.

        With respect to all of these explanations, Dr. Clarke indicated that J.B. appeared

to not know about the history of these incidents except for the car seat issue and the

incident with the couch. [N.T. Feb 12, p. 96-97, 99]. In her medical opinion, these

parents could not explain the injuries to N.C., none of the explanations were reasonable

and could not happen with normal care or handling of a child. (N.T. Feb 12, p. 79-81].

Further, in the totality of the circumstances, Dr. Clarke opined that a reasonable person

would have known that N.C. was hurt when any one of these injuries occurred. [N.T.

Feb 12, p. 85).

                                             17
           This Court agrees with Dr. Clarke's conclusions        and finds that all of J.C!s

  explanations fail to account for N.C.'s injuries,      We find Dr. Clarke's opinions both

  credible and persuasive upon the issue-we         cannot conclude that N.C. would suffer

  injuries of such a severe magnitude through short falls, removal/placement in a car seat,

  or by pushing on his chest to facilitate the movement of mucosa. Even if this Court were

  lo   accept those explanations, the amount of force involved in any one of those

  explanations would still result in an injury requiring medical attention. We note that J.C.

 stated he took the child to the doctor for an x-ray radiograph after the couch fall, however

 there is no indication in the record that such a visit occurred. [N.T. Feb 12, p. 72].

          This Court also received testimony from J.B. regarding the amount of time that

 she and J.C. spent caring for the child. After N.C.'s birth, J.B. took maternity leave from

 her job to care for N.C., living in a household with J.C. and her parents. [N.T. Mar 7, p.

 126). During that time, J.C. worked during the day, waking up around 4:30-5:00 A.M.

and returning home around 5:00-6:00 P.M. [N.T. Mar 7, p. 129-30, 132-33]. J.B. also

stated that there were periods of time where she left J.C. alone with N.C. and those times

increased when the parents moved into a new apartment. [N.T. Mar 7, p. 137-39]. J.B.'s

father, T.B., also noted J.C. and J.B. both had larger amounts of unsupervised time with

N.C. [N.T. Mar 7, p. 155]. We note that BCCYF did not lodge any allegations of abuse

against J.B.'s parents, and the record does not reflect that J.B.'s parents had unsupervised

time with N.C. Therefore, based upon the testimony, we find that the only persons who

had unsupervised access to N.C. were his parents.




                                             18
         Based upon all the evidence presented, we find that J.C. failed to rebut the

  presumption that be perpetrated the abuse against N.C. As stated before, this Court is not

  required to find that J.C. actually physically inflicted the abuse upon N.C.-rather)    the

  Agency shifted the burden to J.C. to rebut the prima facie evidence that he perpetrated

  the abuse against N.C. The Agency established their prima facle case by presenting two

 experts who attribute N.C. 's injuries to child abuse and by showing that J.C. had

 unsupervised access to N.C. From there, the only evidence offered in some form of

 rebuttal were the explanations provided to Dr. Clarke. We accept Dr. Clarke's opinions

 regarding the infeasibility of these explanations to account for N.C. 's injuries, The Court

 finds no other evidence of record that would rebut the presumption that J.C. perpetrated

 abuse against N.C and J.C. declined to present any evidence in his own defense.

 Therefore, based upon the evidence presented, we find that J.C. failed to rebut the

presumption that he abused N.C. and now enter a finding that J.C. perpetrated abuse

against N.C.

        C. J.B. As An Alleged Perpetrator

       This Court must now determine whether J.B. perpetrated the abuse against N.C.

by omission. Similar to J.C., we find that because J.B. is one of N.C.'s parents and N.C.

suffered abuse of such a nature as would ordinarily not be sustained or exist except by

reason of the acts or omissions of the parents, the Agency presented prlma facie evidence

that J.B. perpetrated the abuse against N.C. Therefore) it is J,B/s burden to present

evidence which rebuts this presumption.




                                            19
             ------~--




           As a preliminary matter, we note that Pennsylvania Jaw allows this Court to raise

  the Section 638 l presumption in cases where the record fails to establish that the child

 was in the parent's care at the time of the injury. !11 re L.Z., 111 A.3d 1164, 1176 (Pa.

 2~ 15). Our Supreme Court quoted an earlier decision of the Superior Court as to why the

 presumption may be raised in this context:

                  The Legislature has determined that the likelihood clearly
                 established abuse has occurred, other than at the hands of
                 the custodian, is so small that prima facie evidence the
                 custodian has caused the injury, either by acts or omissions,
                 is all that is required . . . . Such a standard provides
                 maximum protection for the child victim or other children
                 in the community who might be subject to similar abuse if
                 the alleged abuser was not identified and permitted free ·
                 access to the victim or other vulnerable children.

                                 In re L.Z., 111 A.3d at 1178 (quoting /11 the
                                 Interest of J.R.W., 631 · A.2d 1019, 1024
                                 (Pa. Super. 1993)),

         Jn this context, the law of this Commonwealth makes parents continuously

"responsible for their children, absent extenuating circumstances."         !11 re L.Z., 111 A.3d

at 1184.     The statute "neither mentions nor focuses upon the parent or responsible

person, s physical presence at the time of the injury, but rather extends to both acts and

omissions of the parent or responsible person." Id. Therefore, this Court is bound to

hold parents "accountable for the care and protection of the child whether they actually

inflicted the injury or failed in their duty to protect the child," Id. at 1185,




                                               20
                                                      ····------




         However, this presumption is rcbuttable through various types of evidence:

                 [Tjhe Legislature balanced the presumption of Section
                 638l(d) by making it rebuttable as it merely establishes
                  "pritna fade evidence" that the parent perpetrated the
                  abuse, 23      Pa.C.S.   §     6381 (d).    As     commonly
                  understood,primc, facte evidence. is "[sjuch evidence as, in
                  the judgment of the law, is sufficient to establish a given
                  fact, or the group or chain of facts constituting the party's
                 claim or defense, and which if not rebutted or contradicted,
                 will remain sufficient." Black's Law Dictionary 825 (6th
                 ed. abridged 1991 ). Accordingly, evidence that n child
                 suffered injury Iha! would not ordinarily be sustained but
                 for the nets or omissions of the parent or responsible person
                 is sufficient to establish that the parent or responsible
                 person perpetrated that abuse unless the parent · or
                 responsible person rebuts the presumption. The parent or
                responsible person may present evidence demonstrating
                that they did not inflict the abuse, potentially by testifying
                that they gave responsibility for the child lo 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 pr/11111 [acie evidence presented by the CYS agency
                and the rebuttal of the parent or responsible person.

                            111 re L.Z., 111 A.3d at 1185 (emphasis added).


        J.B. agrees with the Agency's position that N .C. suffered child abuse. (N. T. Mar.

7, p. 126]. However, J.B. argues that she did not perpetrate this abuse. J.B. asserts that

she only knew about N.C. 's frenulum injury and had no knowledge as to the rib fractures,

leg fractures, or liver laceration. (N.T. Mar. 7, p. 137].   With respect to the frenulum

injury, J.B. states that J.C. pulled a bottle from N.C. 's mouth and saw some bleeding.

(N.T. Mar. 7, p. 134].     J.B. then states that she drove straight home to find that the

bleeding had subsided. [N.T. Mar. 7, p, 134). She further states that N.C.'s lip was not

swollen or bruised. (N.T. Mar. 7, p. 134]. J.B. also points to the testimony of Dr. Clarke,

                                            21
  who could not estimate a timeframe          in which N.C. would manifest the pain of these

  injuries.

              J.B. also argues   that she cannot    be a perpetrator   because she took N.C. for

  medical care whenever the child appeared HJ. (N.T. Mar. 7> p. 120-22).        In support of this

  argument, J.B. points to doctor visits on September 22nd and September 24th, when

 neither doctor saw any marks> bruises, or callouses on N.C. Id. She also states that she

 did not speak with J.C. about any of the injuries before the child abuse consult with Dr.

 Clarke on October 1st. [N.T. Mar. 7> p. 124]. J.B. also points to periods of time where

 J.C. and N.C. were alone, stating that the abuse may_ have occurred during those periods

 of time.

            The Agency argues that J.B. is a perpetrator by omission. It its memorandum, the

 Agency details that J.B. was N.C.'s primary caretaker for the first five weeks and then

split this role with J.C. for the two weeks prior to September 30th. Def. Mem. at 6. TI1e

Agency also asserts that N.C. was in J.B.>s cure around the clock except for intennittent

periods of time (e.g. 15~20 minutes). Id. While recognizing that J.B. may not have

inflicted the injuries to N.C., the Agency argues that J.B. should have recognized the rib

injuries N.C. suffered within that period of time. Id. The Agency believes that J.B.'s

actions in taking the child to the physician on September 30th may "mitigate some

concern as to her culpability, [but] it does not fully explain how she would have been

completely unaware of the totality of significant injuries this child suffered." Id. The

Agency also points out that she has no explanation for these rib injuries, meaning that

"she either caused those injuries herself and is lying> or she knew about the injuries when

they occurred at the hands of [J.C.] and did not inform anyone." Id. at 6-7.




                                               22
               ..    ·--·-·-·   ·------                     -..- -.--·-------~------·-


              The Court finds that J.B. is a perpetrator by failing to act when N.C. suffered the

  injuries.         While we understand that J.B. took the child to the doctor on three separate

  occasions between September 22nd and September 30th, the fact remains that J.B. was

  primarily responsible for N.C. for five weeks dating from August JOth. The testimony of

 Dr. Clarke, which this Court finds credible in all respects, establishes that N .C. 's healing

  rib fractures were at least three weeks old. Therefore, N.C. suffered those injuries while

 under J.B. 's almost total care.

         Even if J.B. left N.C. in J.C.'s care for a period of thirty minutes, this Court

 believes that N.C. would outwardly manifest symptoms of pain throughout that time

 frame. We base this upon the expert testimony of both physicians, who indicated that the

 rib injuries would cause a substantial amount of pain and would outwardly manifest that

 pain such that a reasonable adult would know that the child was injured. Regardless of

 Dr. Clarke's inability to place a specific time window on that pain manifestation, this

 Court does not believe that J.B. would not have seen any signs or symptoms of the rib

injuries. Both physicians indicated that a great deal of force is required to inflict these

injuries, and that these injuries would cause a lot of pain, distress, and crying. The Court

does not accept that N.C. only outwardly manifested the pain of these injuries for brief

periods of time-eassuming even that the abuse occurred right after J.B. left the home, the

severity of these injuries must have been palpable upon J.B. 's return.

        In this regard, we draw a corollary between the case at bar and /11 re L. V., a recent

Superior Court decision. In L. V., the subject child suffered a number of Iife-threatening

injuries, including "at least twenty-three rib fractures, two or three vertebrae fractures,

two pelvic fractures, and a fracture to her left foot." In re L. V., 127 A.3d 831, 835 (Pa.

Super. 2015). In addition, the child also suffered "an acute subdural hemorrhage, as wel I

                                                 23
 as lacerations     to her spleen and liver, pulmonary contusions to both lungs, and small

pneumothoraces."         Id.   In particular,   the record established that some of the child's rib

fractures were healing and could have been inflicted ten to fourteen days before

presentation.       Id. Upon presentation to the emergency department, the mother told

physicians that the child was in father's care that day, as she was at work. Id. at 833.

Father initially stated that the child fell out of the bed, but later admitted that he struck the

child. Id. The trial court applied the Section 6381 (d) presumption and found Mother to

be a perpetrator of child abuse. Id. at 834 ..

        Before the Superior Court, mother argued that she had not committed child abuse

"as the record indicates that Child's injuries were inflicted by [fjather, and [m]other had

no reason to know that abuse was taking place." Id. at 837. The L. V. Court rejected this

argument:

                   We discern no abuse of discretion. As discussed .. , [c[hild
                   suffered numerous severe injuries which would not
                   ordinarily be sustained but for the acts or omissions of
                   [mjother or [fjather, While [c]hild was reportedly in the
                   care of [f]ather when she sustained the injuries to her
                   internal organs, some of [c]hild's rib fractures occurred
                   between ten and fourteen days prior to [c]hild's
                   hospitalization.   There was no evidence presented by
                   [mjother, or by anyone else, which demonstrated that
                   [c]hild was in the care of [f{ather, rather than [mjother, at
                   the time [cjhild's ribs were fractured. Thus, [m[other has
                  failed to rebut the presumption that her actions, or failure to
                  act, caused those injuries. Additionally, even if [m]other
                  did not intentionally harm [cjhild, it is clear that she failed
                  to stop [fjather's abuse of [c]hild, and failed to seek
                  medical treatment for [cjhild's fractured ribs. Mother's
                  omissions endangered [c]hild's life, impaired [cjhild's
                  functioning, and created an imminent risk of serious
                  physical injury to [c ]hild , . . . The record supports the
                  conclusion of the trial court that [m]other committed "child
                  abuse" pursuant to Section 6303(b)(l).

                                           In re L.V., 127 A.3d at 838.




                                                  24
            While a number of the injuries N.C. suffered are Jess severe that those suffered by

   the child in L. V., we find a similar circumstance in the case at bar regarding the rib

   fractures. This Court is not necessarily inferring that J.B. directly inflicted the abuse

   upon N.C., however, N.C.'s healing rib fractures occurred at a time when J.B. cared for

   N.C. almost around-the-dock.      Regardless of the other injuries, we believe on that basis

  alone that J.B. endangered N.C. by failing to seek medical treatment for N.C.'s fractured

  ribs.

           The Court also discredits J.B. 's explanation as to the frenulum iniury.      Both

  physicians testified that a burst frenulum would cause a substantial amount of bleeding,

  typically enough to trigger parents as to the serious nature of the injury. Based upon that

  testimony, this Court finds J.B. 's explanation that N.C. 's bleeding subsided by the time

  she got home to be entirely implausible. We also received testimony that this is an odd

 injury for an infant to suffer and could only be caused by substantial force, such as

 shoving a bard object into the infant's mouth.         J.B. specifically testified that J.C.

 explained that he was removing a bottle from the infant's mouth and saw blood} replacing

 it with a cold bottle to stop the bleeding, These explanations are entirely inconsistent and

 this Court finds J.B.' s testimony self-serving.

          With respect to the liver laceration and "bucket-handle" factures, this Court

cannot determine that J.B. would have been on notice as to these injuries. While both of

these injuries arc fairly serious and both physicians testified that the child may have

manifested some form of pain response, we cannot discern when these injuries occurred.

Dr. Clarke specifically stated that she could not place a timeframe on the liver laceration

and the only outward symptom would be fussiness. [N.T. Feb 12, p. 93). Thus, unlike the

timeline on the rib fractures, this Court cannot determine when N.C. would have

manifested this pain-we believe it would be entirely speculative to find that J.B. knew

                                              25
  of these j njuries, Similarly, with respect to the "bucket-handle" fractures, while we find

  that they were caused by abuse, Dr. Clarke testified that the only outward manifestation

  of these injuries might have been swollen legs or crying when changing the child's

  diaper. [N.T. Feb 12, p. 94). Dr. Clarke also determined that these injuries were likely

  acute or subacute and testified that a reasonable parent might only know of the injury

  after manipulating the child's legs. [N.T. Feb 12, p. 68-69, 95]. These injuries may not

  have manifested in such a manner as to alert J.B. that N.C.'s legs were injured, and

 therefore we cannot find that J.B. knew about and ignored these injuries.

         J.B. 's also argues that she cannot be a perpetrator because she took the child for

 medical care. On prior visits to Nason Hospital on September 22 and 24, J.B. brought

 N.C. in for a sick visit, where N.C. presented with bronchitis and issues similar to a

 common cold. [N.T. Feb 12, p. 42-44]. The evidence does not show that J.B. discussed

 any possible injuries with doctors on September 22 or 24, but J.B. explains that she did

 not discover these lumps until September 30. [N.T. Mar 7, p. 122-23]. When asked

 about these prior visits> Dr. Castel indicated that he did not conduct these examinations

 and did not know what examination those physicians performed. [N.T. Feb 12, p. 47].

Dr. Castel did, however, explain that these physicians, who saw N.C. for formula and

respiratory issues, may only have listened to N.C. 's chest with a stethoscope rather than

actually palpate the chest. [N.T. Feb 12, p. 45]. J.B. asserts that the doctors N.C. saw on

September 22 and 24 manipulated his chest and found no lumps. [N.T. Mar 7, p. 119-

22).

        Based upon the testimony of both physicians, discussed supra, we discount J.B.'s

argument that she did not discover the injuries until September 30. As shown above

regarding the child abuse findings, it is clear to both physicians that these injuries existed

well before September 30. We also find Dr. Castel's explanation about the September 22

                                             26
  and 24 visits-ihe record does not reflect what examinations these physicians performed

  and therefore we cannot unilaterally decide how these physicians examined N .C. nor

  accept J.B.'s testimony that these physicians examined N.C.'s chest.           The records

  provided to Dr. Castel by Nason do not mention any type of chest examination performed

  on those dates and only indicate findings made with respect lo the formula and

 congestion issues.     The assertion that because two physicians could not find N.C. 's

 injuries shows that J.B. could not have known of these injuries is too speculative an

 inference for this Court, Even if this Court were provided a clearer record regarding

 these prior visits, it would be of no moment-we establish J.B. as a perpetrator of abuse

 based upon her nearly around-the-clock care of N.C. at the time when he suffered the rib

 injuries. The fact that two physicians may not have seen these injuries does not change

 the fact that N.C. suffered these injuries and, when they occurred, he was in J.B. 's nearly

 total care.

         Finally, we must address J.B. 's last argument, which is in the nature of her

personality and actions towards the child. We recognize that J.B. is making efforts to

reunite with N.C. and has availed herself of multiple programs through BCCYF to assist

in that process.   J.B. asks the Court to consider this behavior in light of the serious

allegations levied against her, arguing that her current behavior exemplifies her

commitment to her children and that her care for her children shows that should could not

be a perpetrator of abuse. J.B. Brief at 5-61 8-9.

        While this Court appreciates that J.B. is making efforts to reunite with her

children, this present behavior cannot mask the evidence presented before this Court.

These seemingly mitigating post-incidence circumstances that J.B. asks the Court to

accept docs not change the testimony of two experts regarding the abuse this child




                                             27
  suffered.     Our findings of child abuse and J.B. and J.C. as perpetrators are made based

  upon the factual record placed before the Court

          In light of the foregoing, we find that J.B. failed to rebut the presumption enacted

  by Section 638l(d) and thus find that J.B. perpetrated abuse against N.C. by omission.

  As discussed supra with respect to J.C., we are not required to find by clear and

  convincing evidence that J.B. perpetrated the abuse-rather,      the presumption of Section

  638 l ( d) requires us to examine whether evidence presented by J.B. sufficiently rebuts the

 presumption.     Based upon the large amount of time J.B. spent with N.C. in the first five

 weeks of his life and the co-parenting J.B. and J.C. provided up until the visit to Dr.

 Castel is office, we find that J.B. perpetrated the abuse either by inflicting said abuse upon

 N.C. or failing to prevent the same. The evidence presented in J.B.'s defense in no way

 aligns with any of either physicians> opinions nor does it present a logical reason for

 J.B. 's alleged failure lo recognize these injuries,

         D.      Conclusion

        Jn conclusion, the Court finds that N.C. suffered child abuse at the hands of his

 parents, J.C. and J.B. The testimony of both physicians clearly established that N.C.

suffered some form of child abuse resulting in injury, which raises a presumption that

N.C. 's parents, J.C. and J.B.. abused N.C. J.C. failed to rebut this presumption, as all of

his explanations for the child's injuries were entirely inconsistent with both experts'

testimony and his explanations to Dr. Clarke lacked any type of internal consistency with

J.B.'s limited explanations. J.B. similarly failed to rebut this presumption. With respect

to the rib injuries, J.B. was N.C.'s nearly around-the-clock caretaker when N.C. suffered

the first rib injuries and indicated that she was unaware of the injuries. In regard to the

lip injury, J.B. presented a story entirely inconsistent with J.C.'s explanation to Dr.

Clarke. While the Court cannot impute knowledge ofN.C.'s other injuries upon J.B., we

                                              28
   find J .B/ s lack of response to the db and lip injuries sufficient to sustain a finding that

   J.B. perpetrated the abuse upon N.C.

       II. l\10TTON FOR AGGRAVATED CIRCUMSTANCES

            In light of our finding regarding child abuse, this Court must now determine the

  merits of the Agency's       Motion for Aggravated Circumstances against J.C. as a

  perpetrator of abuse and J.B. for aggravated physical neglect

            The Agency argues that aggravated circumstances are appropriate based upon the

  injuries N.C. suffered. In support, the Agency supports the L.1~ case, discussed supra,

  for the proposition that N.C. suffered injuries consistent with serious bodily injury and

  that aggravated circumstances exist as to J.C. and J.B. The Agency points to N.C.'s

  multiple Injuries, as well as the fact that J.B. failed to "protect the child from the father

 and ...     fail[ed] to seek medical treatment when she became aware of the older rib

 injuries during the time she was with the child almost constantly." Agency Brief at 7.

           Both LB. and J.C. present no position relative to this motion. However, based

 upon J.B. 's opposition to a finding of child abuse, the Court believes that J.B. is also in

 opposition to a finding of aggravated circumstances.

         The Court finds that aggravated circumstances do not exist. We agree with the

Agency's position, but we decline to find that the injuries constituted a life-threatening

condition or that the injuries have impaired N.C. Both physicians testified that N.C, is

healing well, and Dr. Castel specifically stated that bis follow up showed no

developmental delays.     Based upon ow· reading of L. V. and other cases, aggravated

circumstances in physical abuse cases are reserved for, consistent with the statute,

injuries that are life-threatening or substantial impair the child's functioning. Compare

In re R.P., 957 A.2d 1205 (Pa. Super. 2008) (finding aggravated circumstances where

expert testified that child's condition was life threatening with one hundred bruises, skull

                                            29
                                                      ···--·----------                   -----
                                                                              ............




 fracture, hip fracture, and a bilateral subdural hcmatoma) with B.J.S. 111 the Interest of

J.R., 2013 WL l 1238186 (Pa. Super. 2013) (declining aggravated circumstances where

review of injuries, including bruising on head and neck, fracture of left leg, and fracture

of rib which were not permanently disfiguring and did not cause protected loss or

impairment of bodily member did not constitute "serious bodily injury"). We believe

that, in the context of aggravated circumstances, the statute and decisions of our Superior

Court require either severity of injuries that put the child's life in jeopardy or injuries

which impair or cause protracted loss. In the case at bar, neither physician testified that

these injuries were life threatening nor did either physician testify that these injuries

resulted in protracted loss or impairment of any appendage or organ. Without any further

indication that N.C.'s injuries were life-threatening or resulted in continuing impairment,

we are constrained to find that aggravated circumstances do not exist.

       In light of the foregoing opinion, we now enter the following Order:




                                           30
     JN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA


 IN THE INTEREST OF
 N.C., a minor
                                                               CP-07-DP-120-2015

                                                               FID#07-FN-00065-2015




 HON. TIMOTHY M. SULLIVAN                                         PRESIDING JUDGE

JUSTIN WITT, ESQUIRE                                              COUNSEL FOR BCCYF
TRACI L. NAUGLE, ESQUIRE                                          COUNSEL FOR MOTHER
ASHLAN CLARK, ESQUIRE                                             COUNSEL FOR FATHER
TYLER A. ROWLES, ESQUIRE                                          GUARDIAN AD LITEM


                                                 ORDER

        AND NOW, this      3o th day             of June, 2016, consistent with the foregoing   I
                                                                                                I
Opinion, it is hereby ORDERED, DIRECTED and DECREED as folJows:                                 I
                                                                                                I
              The court confirms the finding of child abuse in relation to Childline
        1.
#7446605 (as set forth in the CY48 Form admitted into the record during the March 7,
2016 hearing as Petitioner's Exhibit "J "). As a result, the Agency's indicated report is
                                                                                                I
                                                                                                II
"founded" as to both parents, J.C. and J.B., which arises out of the same set of facts and
circumstances as the Agency's indicated finding relative to Childline #7446605.

      2.      For the reasons stated in our aforesaid Opinion, we deny the Agency's
Motion for Finding of Aggravated Circumstances alleged against both parents.


                             BY THE COURT:
                                     • .,.-t'l
