J-A07035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  IN THE INTEREST OF: L.V., A MINOR            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
  APPEAL OF: J.H., MOTHER                      :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1390 EDA 2018

             Appeal from the Dispositional Order April 16, 2018
    in the Court of Common Pleas of Philadelphia County Family Court at
                      No(s): CP-51-DP-0002253-2016

  IN THE INTEREST OF: L.V-H., A                :   IN THE SUPERIOR COURT OF
  MINOR                                        :        PENNSYLVANIA
                                               :
                                               :
  APPEAL OF: J.H., MOTHER                      :
                                               :
                                               :
                                               :
                                               :   No. 1392 EDA 2018

             Appeal from the Dispositional Order April 16, 2018
    in the Court of Common Pleas of Philadelphia County Family Court at
                      No(s): CP-51-DP-0002269-2016


BEFORE:      LAZARUS, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED APRIL 09, 2019

       Appellant, J.H. (“Mother”), files these consolidated appeals from the

orders entered April 16, 2018 in the Philadelphia County Court of Common

Pleas, adjudicating dependent her son, L.V., born in August 2016, and

daughter, L.V.-H., born in January 2015 (collectively, the “Children”), as well

____________________________________________


* Former Justice specially assigned to the Superior Court.
J-A07035-19



as finding L.V. was abused, that aggravated circumstances exist, and that no

efforts need to be made toward reunification. Mother also challenges the trial

court’s partial denial of Mother’s motion for permission to take L.V. for medical

examination (April 5, 2017), its denial of Mother’s motion for reconsideration

of that order (May 17, 2017), and its denial of Mother’s motion for recusal

(December 15, 2017). 1        After careful review, we affirm.

       The trial court summarized the relevant factual history as follows:

                                 FINDINGS OF FACT

              On October 11, 2016, the Department of Human Services
       (“DHS”) received a Child Protective Services (“CPS”) report
       alleging that two (2) month old [c]hild[,] L.V. was admitted to the
       Children’s Hospital of Philadelphia (“CHOP”) on October 10, 2016
       with multiple fractures. In total[,] twenty[-]six (26) fractures
       were eventually discovered. . . . Medical staff at CHOP determined
       that [] L.V.’s injuries were highly indicative of child abuse. These
       fractures were also in various stages of healing. CHOP admitted
       [] L.V. to the Trauma Unit where [] L.V. remained for several days.
       Mother and Father were unable to explain the causes of [] L.V.’s
       fractures. Mother and Father denied that the [c]hild had been
       dropped or fallen or left in the care of someone other than Mother
       or Father.
                                         ***
       On October 13, 2016[,] [DHS] obtained an Order of Protective
       Custody for [] L.V. and [] L.V.H.[2]. . . On October 21, 2016, DHS
       filed the underlying Petition for Dependency and sought a finding
       of aggravated circumstances and child abuse against Mother and
       Father[.]

Trial Court Opinion (“T.C.O.”), 10/5/18, at 4-5.


____________________________________________


1The Children’s father, J.A. (“Father”) did not appeal any of these matters.
2 The Children initially were placed in kinship care with Maternal Cousin, but
were subsequently placed with Maternal Aunt on December 21, 2016. Notes
of Testimony (“N.T.”), 8/23/17, at 220-21; Continuance Order, 12/21/16.

                                           -2-
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        On December 5, 2016, the CPS report stated that Mother and Father

had been indicated as perpetrators of abuse based on medical evidence. N.T.,

8/23/17, at 207-208. DHS investigative worker Ashley Wingate testified that

the report was indicated based on “CHOP’s findings that the injuries were

extensive and indicative of inflicted injury.   The parents couldn’t offer any

explanation for the injuries or how they occurred.       Also, no one else was

caretaker who could have caused the multiple injuries, including new and

healing fractures.” Id. at 219-20.

        The trial court conducted adjudicatory hearings on August 23, 2017,

September 11, 2017, December 15, 2017, March 27, 2018, and April 16,

2018.    The Children were represented by Beth Kahn, Esquire, and Jalaine

Stokes, Esquire, of the Defenders’ Association Child Advocate Unit. Mother

and Father were present and represented by counsel throughout.

        Mother and Father testified on their own behalf as to the events that led

to L.V.’s hospitalization on October 10, 2016. Mother noticed L.V.’s shoulder

swelling on Thursday, October 6, 2016. Mother called the pediatrician on

Friday, October 7, 2016 and was advised there were no doctors available to

see L.V.     While the doctor’s office directed Mother to take L.V. to the

emergency room, Mother decided to wait until L.V.’s scheduled pediatric

appointment on Monday, October 10, 2016.

        Mother testified that she felt the swelling in L.V.’s shoulder was not a

serious injury as L.V. was not crying. That weekend, Mother felt L.V. was doing

fine and sleeping well, but observed that he had reduced his level of feeding.

                                       -3-
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On Monday, before taking L.V. to his appointment, Mother noticed swelling in

L.V.’s leg, but asserted that she never saw any bruises. At this visit, L.V.’s

pediatrician directed Mother to take L.V. to the emergency room, where CHOP

personnel discovered that L.V. had twenty-six fractures.3

       Mother claimed she had no reason to believe Father harmed L.V.; she

indicated she always was with the baby as she was on maternity leave and

L.V. was left alone with Father “maybe three, five times.” N.T., 3/27/18, at

153. After the Children were removed from her home, Mother admitted that

she and Father could not “handle … the fact that our kids were taken away,”

and shared that Parents’ marriage experienced a lot of conflict. Id. at 159.

Mother conceded that she filed for a Protection from Abuse (PFA) order against

Father, claiming he threatened to slice her throat.     Id. at 159.    However,

Mother testified that she had no reason to believe Father injured L.V.

       Father gave similar testimony describing the days before L.V.’s injuries

were discovered in the CHOP emergency room. Father admitted seeing L.V.’s

shoulder was swollen on Thursday, October 6, 2016, but corroborated

Mother’s testimony that the pediatrician was not available until the following

Monday morning.        Father claimed that he did not see that L.V.’s leg was

swollen as the baby always had clothes on; Father shared that both Mother
____________________________________________


3 Notably, Mother indicated she had taken L.V. to the emergency room at St.
Christopher’s Hospital two weeks earlier on September 16, 2016, at the
direction of the pediatrician, due to discoloration in L.V.’s nails, his vomiting
of formula and breast milk, and a “lump” on his back. However, emergency
room personnel sent Mother home without a diagnosis. Id. at 146-47.


                                           -4-
J-A07035-19



and Father cared for him. Father indicated that “at no time whatsoever” would

Mother have caused L.V.’s injuries. N.T., 3/27/18, at 180. When asked about

Mother’s claim that he threatened to slice her throat, Father asserted that he

did not use those words. Id. at 181.

     The parties offered competing medical expert testimony to attempt to

explain the cause of L.V.’s injuries. DHS first presented the testimony of Dr.

Cindy Christian, a CHOP pediatrician on the Suspected Child Abuse and

Neglect (“SCAN”) team or child protection team, whom the trial court qualified

as an expert in pediatrics and pediatric child abuse. Dr. Christian reported

L.V. presented at the CHOP emergency room in a lot of pain and was not

moving his left leg. L.V. was admitted to the Trauma Service as he exhibited

twenty-six fractures and had to be treated gently. N.T., 8/23/17, at 66. L.V.

had both new and healing fractures of his ribs, metatarsal (foot), tibia (shin

bone), femur (thigh bone), humerus (arm), and acromion (shoulder blade).

Id. at 49-50, 54-59, 66. Dr. Christian stated,

            Many of the fractures that we saw were fractures that are
     more specific or not seen very frequently in children who have
     accidental fractures; more commonly seen in children who have
     inflicted fractures.
            And I think what was remarkable about [L.V.] was how
     many fractures he had when he came into the hospital.

Id. at 64. She noted that shoulder blade and rib fractures are uncommon in

accidental trauma. She noted L.V. had some metaphyseal fractures located

at “the end or the growing portion of the bone,” which were uncommon. Id.




                                    -5-
J-A07035-19



at 55, 65. Moreover, Dr. Christian reiterated that she never saw the amount

of fractures exhibited instantly as a result of accidental trauma. Id. at 66.

        Due to the high number of fractures, Dr. Christian found it necessary to

rule out any underlying disease processes and obtained a consult for metabolic

bone disease. Id. at 70-71. After further testing, Dr. Christian was able to

rule out osteogenesis imperfecta (brittle bone disease), vitamin D deficiency,

and rickets disease.4 Id. at 71-75; see also DHS Exhibit 6. When asked to

evaluate the opinion of Mother’s expert, Dr. Michael Holick, who believes L.V.

has a metabolic bone disease called Ehlers-Danlos syndrome, Dr. Christian

asserted that Ehlers-Danlos syndrome is “not a disease that’s known to cause

multiple fractures in infants, and not a disease that’s associated with fractures

in infants.” N.T., 8/23/17, at 85.




____________________________________________


4   With respect to rickets, Dr. Christian explained that,

              Rickets is a metabolic disorder of growing bones where,
        because -- most commonly -- there are multiple causes of rickets,
        but the most common is vitamin D deficiency.

              You need good vitamin D to mineralize your growing bones.
        And if you don’t have enough vitamin D, then you can’t lay down
        the normal calcium and phosphorus at the ends of your growing
        bones.

N.T., 8/23/17, at 76-77. In addition, Dr. Christian reported that L.V.’s vitamin
D level was “insufficient, but sufficient for bone health.” A level is deemed
“deficient” if below 20; L.V.’s level was 23. Id. at 74. A course of vitamin D
supplementation was recommended and instituted. See DHS Exhibit 4.



                                           -6-
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       Moreover, after Dr. Christian observed abnormal healing of L.V.’s bones

on a second skeletal survey, she obtained a third survey, which revealed no

new fractures and normal healing of existing fractures.5 She explained,

       At the time of [L.V.’s] follow-up skeletal survey, which was two or
       three weeks after he was hospitalized, when we reviewed the x-
       rays and he had some unusual kind of findings on -- as his bones
       were healing, in addition to doing genetic testing, I thought that
       it might be useful to get yet a third set of skeletal survey because
       -- which I don’t normally do.
               We always would get a skeletal survey when babies are
       initially hospitalized. We often get a follow-up a few weeks after
       hospitalization.
               But I thought – I knew that [L.V.] was in a different home
       environment and that, if I waited a few more weeks and got yet a
       third skeletal survey and I saw additional new fractures that I
       hadn’t been seeing on the first two skeletal surveys, it would
       indicate to me that there was something inherently wrong with his
       bones that maybe we were missing with our osteogenesis
       imperfecta studies.
               I don’t know what that was, but I felt like it was -- it would
       tell me that there were -- that there was more testing that we
       should think about or -- or do.
               And, so, I asked for [L.V.] to have a third skeletal survey.
       And, again, Your Honor, I don’t normally do this. And he did have
       the third skeletal survey, and there were no new fractures.
               So -- and all of the other fractures that he already had were
       healing very nicely. And, so, at that time, I didn’t think that
       additional testing for genetic diseases was indicated at that time
       because, as soon as he came into the hospital, he had no further
       fractures.
               And in the first two months of life, he had multiple, multiple
       fractures. So, if he had a genetic disease that was so terrible that
       it broke multiple bones in the first two months of life, it didn’t
       seem consistent with then it suddenly -- there were no more
       fractures after that.


____________________________________________


5 Three skeletal surveys were obtained on October 11, 2016, October 28,
2016, and on November 17, 2016. N.T., 8/23/17, at 81; DHS Exhibit 5.

                                           -7-
J-A07035-19



Id. at 79-80. She found that the fact that L.V.’s “third skeletal survey [] didn’t

show ongoing fragility of his bones suggested that he didn’t have a genetic

disease that caused all of the fractures that we saw in the first -- at two

months of age.” Id. at 98. As such, Dr. Christian testified to a reasonable

degree of medical certainty that L.V.’s injuries were “highly concerning for

inflicted or non-accidental trauma.” Id. at 100.

      DHS also offered the testimony of Dr. Maria Katherine Henry, a fellow

physician on the child protection team at CHOP, who was qualified without

objection as an expert in pediatrics and child abuse. Dr. Henry concurred that

L.V.’s injuries were “highly concerning for inflicted trauma.” N.T., 8/23/17, at

194. When asked for the basis for this determination, Dr. Henry stated,

             So, we based that on the absence of a history of trauma
      provided. In addition, we did a medical evaluation, looking at
      nutritional bone disease, and did not find significant diseases in
      his vitamin D level.
             We, in addition, consulted our colleagues in metabolism,
      who sent different testing for osteogenesis imperfecta, and that
      was negative, as well.
             So, it was the absence of a history of any type of accidental
      trauma that could explain these findings, and then, in addition, an
      absence of a medical cause that was identified to explain his
      injuries.

Id. When asked if L.V.’s injuries caused concern, Dr. Henry explained,

             So -- yes. We look at the constellation of injuries, and that’s
      concerning. And, so, as a whole, his injuries were concerning, but
      there were some injuries in isolation that would be concerning for
      inflicted trauma.
             And those include the rib fractures, the fractured scapula,
      as well his foot fractures. So, he did have injuries in isolation, but
      it was also the constellation of injuries that was concerning.

Id. at 194-95.

                                      -8-
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       Moreover, DHS presented the testimony of Ashley Wingate, DHS

investigative worker, and Patrice Stewart-Lane, CUA case manager, Catholic

Community Services. Ms. Stewart-Lane testified that she was troubled that

there was no explanation for L.V.’s fractures, and that the family needed

services due to issues of domestic abuse.        N.T., 8/23/17, at 233.    She

expressed that the Children should remain in the kinship home. Id.

       Mother presented the testimony of Dr. Michael Holick, a practicing

endocrinologist who specializes in the area of metabolic bone disease with

research focused on vitamin D deficiency. Although Mother offered Dr. Holick

as an expert in endocrinology and pediatric endocrinology, the trial court only

qualified Dr. Holick as an expert in the treatment of vitamin D deficiency. 6

       Dr. Holick testified that L.V. had a “high likelihood” of having Ehlers-

Danlos hypermobility type 3 syndrome, a disorder of the collagen matrix

related to osteogenesis imperfecta and marfan syndrome. N.T., 8/23/17, at

284.    He further noted that, due to vitamin D insufficiency, L.V. was at

increased risk for bone fragility. Id. at 285-86. Dr. Holick opined that this

combination “markedly increases the fragility of [the collagen matrix],

increasing risk for fracture with normal handling.” Id. at 303-304.
____________________________________________


6 Dr. Holick’s report, dated March 15, 2017, was admitted as Mother’s Exhibit
6. N.T., 8/23/17, at 310-11. He testified on voir dire that “endocrinology is
the study of hormones, and vitamin D is a hormone. . . .And also, … many of
the hormones are related to metabolic bone disease. . . .And, so, typically,
patients with metabolic bone disease will see an endocrinologist.” Id. at 263.




                                           -9-
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       Although Dr. Holick admitted that he did not examine L.V., he noted

symptoms of Ehlers-Danlos syndrome from L.V.’s medical records, such as

gastroparesis, mast cell hypersensitivity, and blue sclera (whites of the eyes).7

Id. at 277. Dr. Holick indicated that Mother was vitamin D deficient and, as

Mother breastfed L.V., “he was likely vitamin D deficient at the time of his

birth, and at least during the first month, when he was being breastfed, since

there is essentially no vitamin D in breast milk.” Id. at 285.

       Moreover, Dr. Holick felt L.V. was likely to have Ehlers-Danlos syndrome

based on the fact that he diagnosed Mother with Ehlers-Danlos syndrome with

marfanoid features after clinical examination.      Id. at 269, 274-75, 287.8

Given that Ehlers-Danlos syndrome is a genetic disorder that is autosomal

dominant, Dr. Holick believed L.V. had a fifty percent chance of acquiring it

from Mother. Id. at 268, 275, 284. As to his diagnosis that L.V. has Ehlers-

Danlos syndrome, Dr. Holick stated, “I can’t say that it explains 26 fractures,
____________________________________________


7  Dr. Holick testified that some pediatricians have not fully understood or
appreciated the variety of symptoms associated with Ehlers-Danlos syndrome
in infants, such as difficulty having full meals, gastroparesis, muddled-looking
skin, which is a sign for mast cell hypersensitivity. Dr. Holick claimed that it
is “well-documented in the literature by many publications that Ehlers-Danlos
syndrome is associated with fragility fractures of the skeleton.” Id. at 273.
8 Dr. Holick indicated that Ehlers-Danlos syndrome, while a genetic syndrome,

is diagnosed clinically with a nine-point Beighton score analysis that examines
the flexibility of various joints. A score of five out of nine would be diagnostic
for Ehlers-Danlos syndrome; Dr. Holick found Mother had a Beighton score of
seven out of nine. Id. at 269-71, 278-79.
       However, Dr. Holick acknowledged that, as a Beighton score cannot be
assessed on infants, a diagnosis of Ehlers-Danlos syndrome cannot be made
with “a high degree of medical certainty” in infants. Id. at 299-300, 307-308.



                                          - 10 -
J-A07035-19



but what I can say is that it can certainly explain many of the fractures,

because it’s associated with bone fragility in children and adults.” Id. at 288.

       Mother also presented the testimony of Dr. Julie Mack, a physician

certified in both radiology and pediatric radiology. Despite noting that Dr.

Mack had not focused in pediatric radiology for an extended period of time,

the trial court qualified Dr. Mack as an expert in pediatric radiology.9

       Dr. Mack testified to an abnormality with L.V.’s case upon review of

radiologic imaging. N.T., 3/27/18, at 42. She observed that, “the imaging

was so unusual. This was not a case of standard fracture with typical healing

of fractures. . . . There’s something odd about these bones. . . . A lot of my

report is recommendation for more information, because I considered the

findings unusual.”       Id.   Thus, Dr. Mack expressed the need for further

consideration and investigation as to underlying metabolic and/or genetic

disease process. Id. at 42, 47, 69, 82.

              I think … my conclusion in this case is that there are many
       things in this case that do not -- should not be brushed aside as
       irrelevant or unimportant, because they are standing out like big
       white light bulbs, saying this is -- something’s unusual here and
       this child deserves a consideration that these things actually
       contributed to weak bones in this case. . . .

____________________________________________


9 Dr. Mack’s report, dated March 15, 2017, was admitted as Mother’s Exhibit
4. N.T., 3/27/18, at 81. Dr. Mack admitted that she has focused on breast
imaging since 2006, except for when on-call until 2011 and conducting private
consulting work. In qualifying Dr. Mack as an expert in pediatric radiology,
the trial court stated, “All right. I’m going to find the doctor’s an expert in
pediatric radiology, with this caveat, that her – and I’m going to give her
testimony the weight it deserves. However, keeping in mind that she has
really not practiced in this field since 2006. . . .” Id. at 38.

                                          - 11 -
J-A07035-19



Id. at 94. Dr. Mack further opined in her report,

      [w]hile unexplained fractures raise the suspicion of possible
      abuse, the radiologic findings seen in [L.V.] also raise a significant
      concern that the best explanation for these unexplained fractures
      and bone abnormalities is a bone fragility disorder that remains
      undiagnosed. A work up by a clinician or geneticist with expertise
      in bone fragility syndromes, preferably with an emphasis on
      structural proteins, to ascertain whether additional imaging
      and/or testing, such as whole exome sequencing, is warranted is
      recommended. . . .

Mother’s Exhibit 4, at 18. However, while noting that features on the imaging

supported a diagnosis of rickets or a collagen disorder, Dr. Mack clarified that

Ehlers-Danlos syndrome requires a clinical diagnosis, not a radiographic one.

As such, Dr. Mack could not say whether L.V.’s injuries were due to an

underlying genetic disorder and could not rule out that L.V.’s injuries were

caused by abuse. N.T., 3/27/18, at 94-95, 102.

      The Child Advocate presented, by way of rebuttal to the testimony of

Mother’s experts, respectively, the testimony of Dr. Sabah Servaes, a pediatric

radiologist at CHOP, who was also qualified as an expert in pediatric radiology.

Dr. Servaes questioned Dr. Mack’s conclusions:

      Q. Okay. Can you tell the [c]ourt whether you -- what your --
      whether you’re in agreement with what Dr. Mack has testified here
      today?
      A. Largely, no. Much of her commentary, some of her statements
      are accurate and true, but her overall summary, I disagree with.
      Q. Okay. Can you explain that in any further detail though?
      A. Yes. So she has suggested that there may be some underlying
      metabolic bone disease. That seems to be her primary concern.
      And with metabolic bone disease, that’s a systemic disorder, that
      we see it in multiple bones, that we don’t just see it in a single
      bone or a single area of the body. And it is true that, for example,
      rickets, one of the named disorders that she listed, you might see

                                     - 12 -
J-A07035-19


      it earlier in part of the skeleton than another -- than in other parts.
      However, it will be symmetric. You’ll see it on both sides. . . .

N.T., 3/27/18, at 115-16.

      In her professional opinion, Dr. Servaes testified that she did not believe

that L.V. has any kind of metabolic bone disorder. Id. at 124. She provided

that “the findings that we see in his case are very asymmetric. There is no

underlying systemic disorder that I can see on the images and it is typical

when there is metabolic bone disease that severe enough to result in fractures

that you can see the abnormality in the bones.” Id.

      Rather, Dr. Servaes opined that L.V. was the victim of non-accidental

trauma. Id. at 128-29. When asked to explain, she responded, “There are

multiple fractures -- there are multiple fractures in different stages of healing.

They’re in characteristic locations, being at the ribs and at the ends of long

bones like the femur, the tibia, the humerus. And there isn’t any apparent

underlying disorder that I can see.” Id. at 129.

      The Child Advocate also presented Dr. Paige Kaplan, a physician

formerly associated with CHOP, who was qualified as an expert in pediatric

genetics. Dr. Kaplan testified that she was present at the September 1, 2017

examination of L.V. (who was then one year old). Dr. Kaplan stated,

      I observed that there were no features of Ehlers-Danlos syndrome
      in [L.V.] He did not have any joint hypermobility. He walked very
      well, independently, with a very steady gait for a child of one year
      and three weeks.
             The whites of his eyes, the sclera, were only slightly gray,
      which is common in this age group. . . .
                                      ***
      He did not have stretchy skin. He did not have any bruises. And,
      in the history, his aunt reported no features that were suggestive

                                      - 13 -
J-A07035-19


      of Ehlers-Danlos syndrome, such as frequent falls, bruising,
      constipation, changes in color of his skin.
            Additionally, he’d been reported to have dark brown
      discoloration and pitting of his nails from birth, and I had seen
      photographs of those. And, by the time he was evaluated at a
      year and three weeks, this had cleared up.

N.T. 4/16/18, at 12-13. She continued,

            In my observation of his exam that day, and in view of the
      fact that he’d had extensive testing using the most modern
      molecular methods for osteogenesis imperfecta -- brittle bone
      disease -- and his chemical value, there was no evidence for him
      having Ehlers-Danlos syndrome or osteogenesis imperfecta and it
      was not warranted to do any other testing.

Id. at 14.

      As such, Dr. Kaplan disagreed with Dr. Holick’s conclusion that L.V. had

Ehlers-Danlos syndrome. Id. at 14-15. Aside from a lack of evidence, she

explained that it is “not compatible with Ehlers-Danlos syndrome to have

fractures in a one or two or three month old baby. This is not part of the

Ehlers-Danlos syndrome.” Id. at 15-16. She also disagreed with Dr. Holick’s

conclusion that a vitamin D deficiency made L.V. susceptible to fracture,

noting, “a recent article by another consortium of vitamin D experts from

around the world concluded that low vitamin D was not the reason for people

having multiple fractures, per se.” Id. at 16-17. Further, while vitamin D

deficiency can result in rickets, which can be linked with fractures, Dr. Kaplan

indicated that this usually occurs with weight-bearing fractures, which would

not occur in a two-month old baby. Id. at 17.

      Moreover, Dr. Kaplan reiterated that genetic testing was conducted and

revealed that L.V. did not have osteogenesis imperfecta. Id. at 18, 20. As


                                     - 14 -
J-A07035-19



such, when asked if there was evidence of an underlying genetic disorder for

L.V.’s injuries, Dr. Kaplan responded, “There was no evidence for [L.V.] having

a condition that would lead to multiple fractures[,] such as osteogenesis

imperfecta[,] in this two to three month-old baby.” Id. at 20-21.

       At the conclusion of the hearing on April 16, 2018, the lower court

adjudicated the Children dependent, and found aggravated circumstances

existed such that reasonable efforts were not required by CYS to reunify Child

with Mother or Father. The court stated,

              Based on the testimony of Dr. Christian, Dr. Henry, Dr.
       [Servaes] and Dr. Kaplan, today, I’m making the following
       findings: That there are no symptoms in this child of genetic
       disorder, there are no Ehlers-Danlos syndrome [sic], there’s no
       brittle bone disease, and there’s no evidence of [R]ickets in this
       child.
              What there is evidence of is child abuse -- 26 fractures. And
       the testimony of the experts, the pediatric experts and the genetic
       experts, the child abuse experts -- none of which was presented
       by the parents’ attorney.
              Dr. Holick was qualified as a vitamin D expert. I had trouble
       with his testimony. It did not appear to be credible to me.
              I did find the testimony of the doctors[] presented by the
       City and by the child advocate[] to be credible, along with the CUA
       case manager, Ms. … Stewart-Lane, and also the DHS
       investigator, Ms. Wingate. I found the divergent testimony of the
       parents, pointing fingers at each other, to be incredible.[10]
              And therefore, I am adjudicating the child dependent based
       on present inability. I’m making a finding of child abuse under
       Title 23, and also making a finding of aggravated circumstances
       as to both parents under Title 42, Section 6202(2).
____________________________________________


10 Mother and Father’s testimony does not suggest that they were “pointing
fingers at each other.” Mother claimed she had no reason to believe L.V. was
harmed by Father. N.T., 3/27/18, at 154, 160. Further, Father testified he
did not believe it was possible that Mother harmed L.V. Id. at 180.


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J-A07035-19


            I am ordering no reasonable efforts to reunite this child,
      based upon the severity of the injuries to this child, and based
      upon all of the testimony, the totality of which -- I’ve reached the
      inescapable conclusion that this child has been abused and that
      the parents were the ones who had custody of this child while the
      abuse occurred.

N.T., 4/16/18, at 76-77. Upon clarification, the court indicated that it was

also adjudicating L.V.-H. dependent, and making a finding of aggravated

circumstances and that no reasonable efforts for reunification were necessary.

Id. at 77-78. However, the trial court allowed Mother and Father to have

continued visitation.   These findings were memorialized by orders entered

April 16, 2018. The court entered separate orders of adjudication and

disposition and aggravated circumstances orders for each child.

      On May 11, 2018, Mother filed a timely notice of appeal, along with

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

1925(a)(2)(i) and (b). On May 23, 2018, this Court consolidated Mother’s

appeals pursuant to Pa.R.A.P. 513.

      On appeal, Mother raises the following issues for our review:

      1. Did the trial court err when it denied Mother the opportunity to
      take her son, L.V., outside of Philadelphia to be examined by a
      Massachusetts [e]ndocrinologist (Dr. Michael Holick) and Ohio
      pediatric geneticist (Dr. Marvin Miller)?

      2. Did the trial court err when it failed to credit Dr. Holick’s
      testimony because he had not examined L.V., failed to credit Dr.
      Holick because he was not a child abuse doctor, failed to qualify
      Dr. Holick as an expert in endocrinology and pediatric
      endocrinology, and criticized Mother for failing to procure a
      geneticist?

      3. Did the trial court err when it failed to recuse itself for having a
      bias in favor of child abuse and CHOP doctors?

                                      - 16 -
J-A07035-19



       4. Did the trial court err when it ordered that DHS make no efforts
       to reunify the children with their Mother?

       5. Did the trial court err by extreme delay in scheduling the
       dependency hearing?

       6. Did the trial court err when it ordered that DHS make no efforts
       to reunify the children with their Mother?

       7. Did the trial court err when it linked reunification with one or
       both of the parents’ confessing to abusing L.V.?

Mother’s Brief at 2-3. [11]

       Our standard of review for dependency cases is as follows:

       [T]he standard of review in dependency cases requires an
       appellate court to accept the findings of fact and credibility
       determinations of the trial court if they are supported by the
       record, but does not require the appellate court to accept the
       lower court’s inferences or conclusions of law. Accordingly, we
       review for an abuse of discretion.

In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010) (citations omitted).

The trial court is free to believe all, part, or none of the evidence presented

and is likewise free to make all credibility determinations and resolve conflicts

in the evidence.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004)

(citation omitted).



____________________________________________


11 Upon review of Mother’s Rule 1925(b) statement and the argument section
of her brief, it appears that Mother made an error and repeated her sixth issue
in her statement of questions presented. From her Rule 1925(b) statement
and argument, we recognize that her fourth issue is, “The trial court erred
when it found the children dependent, when it found [L.V.] had been abused
and erred in finding aggravated circumstances.” Concise Statement of Matters
Complained of on Appeal, 5/11/18. As we are able to discern the issue, as
were the trial court and other parties, we do not penalize Mother.

                                          - 17 -
J-A07035-19



      However, prior to reaching the merits of Mother’s arguments, we must

first address we have jurisdiction over the appeal. “This [C]ourt may examine

appealability sua sponte because it affects our jurisdiction over the matter.”

In re K.K., 957 A.2d 298, 303 (Pa.Super. 2008) (citation omitted).

      First, we observe Mother filed only one notice of appeal on May 11, 2018

from the separate orders as to each child entered on the separate dockets.

Our Supreme Court has held that “where a single order resolves issues arising

on more than one docket, separate notices of appeal must be filed for each

case.” Commonwealth v. Walker, ___Pa.___, 185 A.3d 969, 971 (2018).

      However, the Court in Walker declined to apply the rule to the case

before it, because to do so would run “contrary to decades of case law from

[the Pennsylvania Supreme Court] and the intermediate appellate courts that,

while disapproving of the practice of failing to file multiple appeals,

seldom quashed appeals as a result.” Id. Thus, the Supreme Court instructed

that in all future cases, a failure to file a notice of appeal for each lower court

docket will result in quashal of the appeal. As Mother’s notice of appeal was

filed prior to the Walker ruling, Walker is not controlling in this case. Thus,

we decline to quash Mother’s appeal on this basis.

      Next, we must determine whether we have jurisdiction as to review the

trial court’s previous orders denying Mother’s request to take L.V. out-of-state

for medical examination, and its denial of Mother’s motion for recusal. The

trial court did not address the merits of these claims, which it deemed untimely

as Mother did not file appeals within thirty days of the entry of these orders.

                                      - 18 -
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See Pa.R.A.P. 903 (providing that a notice of appeal “shall be filed within 30

days after the entry of the order from which the appeal is taken”).

      However, it is well-settled that, “[a]n appeal lies only from a final order,

unless permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468,

471 (Pa.Super. 2013).     Generally, a final order is one that disposes of all

claims and all parties. See Pa.R.A.P. 341(b). See also In re H.S.W.C.-B &

S.E.C.-B., 575 Pa. 473, 478, 836 A.2d 908, 911 (2003) (finding, with regard

to dependency matters, “[a]n order granting or denying a status change, as

well as an order terminating or preserving parental rights, shall be deemed

final when entered”) (citation omitted).

      Upon review, we conclude that the April 5, 2017 and May 17, 2017

orders as to permission to take L.V. for additional medical examination, and

the December 15, 2017 order as to recusal were not final, appealable orders.

As these orders did not dispose of a goal change and/or termination petition,

the within appeal challenging those matters is timely.

      Moreover, DHS and the Child Advocate argue that the majority of

Mother’s claims should be deemed waived as they are undeveloped without

pertinent citation to legal authority. See In re W.H., 25 A.3d 330, 339 n.3

(Pa.Super. 2011), appeal denied, 611 Pa. 643, 24 A.3d 364 (2011) (quoting

In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010)) (“[W]here an appellate brief

fails to provide any discussion of a claim with citation to relevant authority or

fails to develop the issue in any other meaningful fashion capable of review,

that claim is waived”); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66

                                     - 19 -
J-A07035-19



(Pa.Super. 2017).    Although Mother’s brief is deficient in some instances,

Mother provides some citation to legal authority and does not prevent

meaningful review. Thus, we decline to find waiver.

      Turning to the merits of Mother’s appeal, Mother first claims that the

trial court erred when it denied her the opportunity to take L.V. for

examination by Dr. Holick (an endocrinologist in Massachusetts) and Dr. Miller

(a pediatric geneticist in Ohio). Mother’s Brief at 10. Mother argues,

            [t]he right to obtain expert witness evidence in a medically
      complex case is mandated by the due process clause of the United
      States Constitution.     The Pennsylvania Supreme Court has
      recognized a parent’s right to have relevant expert witness
      testimony admitted at a dependency hearing, reversing the trial
      court’s decision to exclude such evidence. [In re C.M.T.], 861
      A.2d 348, (Pa. 2004). The trial court’s refusal to allow Mother to
      take (or send) L.V. outside of Philadelphia to obtain second
      opinions to counter the opinions of the four CHOP doctors called
      by DHS and the CA [Child Advocate], effectively denied Mother
      the ability to adequately defend the medically diagnosed
      allegations of child abuse in the dependency petition.

Id. at 10-11. While Mother acknowledges the lower court permitted further

examination of L.V. in Philadelphia, she claims this restriction is unfair as

neither of her desired experts is licensed in Pennsylvania, Pennsylvania does

not allow telemedicine, and Pennsylvania’s temporary license requirements

are burdensome. Id. at 13-14.

      Section 6339 of the Juvenile Act provides in pertinent part:

      (b) Physical and mental examinations and treatment.--
      During the pendency of any proceeding the court may order the
      child to be examined at a suitable place by a physician or
      psychologist and may also order medical or surgical treatment of
      a child who is suffering from a serious physical condition or illness


                                     - 20 -
J-A07035-19


     which in the opinion of a licensed physician requires prompt
     treatment, even if the parent, guardian, or other custodian has
     not been given notice of a hearing, is not available, or without
     good cause informs the court of his refusal to consent to the
     treatment.

42 Pa.C.S.A. § 6339(b).

     In this case, the trial court granted Mother’s motion to seek additional

medical examination from the physicians of her choice, but required that such

examinations be conducted in Philadelphia. The trial court provided:

           THE COURT: So, I’m granting your motion as to allowing
     an examination of the child. I need the names of which doctors
     you wish the child to be examined by. This examination will take
     place in Philadelphia.     Your expert doctors are to make
     arrangements with the appropriate hospital or doctor to conduct
     these examinations.

           [] how old is the child now, seven months old?

           [Counsel for DHS]: Eight months, Your Honor.

           THE COURT: Eight months old. I’m not having an eight-
     month-old dragged throughout the country. I mean[,] if your
     expert was in China[,] I wouldn’t grant the motion either.
                                 ***
           I’m just changing the venue of where these exams will take
     place. The most logical place is where the child is in placement in
     Philadelphia. This [c]ourt has jurisdiction. And the injuries
     allegedly occurred in Philadelphia. The expert doctors at CHOP
     are in Philadelphia. I’m not denying your motion[,] I’m just
     granting your motion and telling you that you are to make
     arrangements for the doctors to examine the child. You put in
     your motion[,] I think I read[,] this examination would only take
     an hour or two. Have the doctor fly down on his clinical day for
     an hour or two from Boston. It’s a one hour flight. He’ll be back
     in two hours or three hours after he examines the child, and he
     can write up his report.

N.T., 4/5/17, at 23-24.



                                   - 21 -
J-A07035-19



      In denying Mother’s motion for reconsideration, the court explained:

             THE COURT: I’m not precluding you from having this
      doctor examine this child. My ruling was the child’s not going to
      be moved out of state to accommodate your client’s interest. It’s
      not in the best interest of a child who is severely injured to be
      moved and examined by a doctor who I don’t even know is
      qualified to examine the child.

N.T., 5/17/17, at 12.

      The trial court appropriately exercised its discretion in determining that

the only suitable place for L.V. to be examined was Philadelphia, as it would

not be in L.V.’s best interests to move him long distances due to his recent

recovery from twenty-six fractures and the possibility that L.V.’s bones were

fragile due to a metabolic and/or genetic condition.

      Mother baldly asserts that it was too burdensome for her experts to

obtain temporary licensing to examine L.V. in Pennsylvania.         However, it

appears that she did not fully investigate this course of action as her own

expert, Dr. Holick, was unaware such licensing was available. Moreover,

Pennsylvania regulatory law allows for the temporary licensure of an

appropriately licensed physician who is licensed in “another state, territory, or

possession of the United States” for numerous circumstances, including the

physician’s “participation in a medical or surgical procedure necessary for the

well-being of a specified patient.” 49 Pa.Code § 17.6(a)(2). The Board of

Medicine also has the discretion to issue a temporary license to a physician

for a purpose as deemed appropriate on a case by case basis. 49 Pa.Code §

17.6(i). As such, this claim is meritless.


                                     - 22 -
J-A07035-19



      Second, Mother asserts that the trial court should have qualified Dr.

Holick as an expert in endocrinology and given Dr. Holick’s testimony more

weight. To the extent Mother opposes the court’s failure to qualify Dr. Holick

as an endocrinologist or pediatric endocrinologist, we find that Mother failed

to preserve such a challenge as she did not specifically include this issue in

her Rule 1925(b) statement.        See Krebs v. United Refining Co. of

Pennsylvania, 893 A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to

preserve issues by raising them both in the concise statement of errors

complained of on appeal and statement of questions involved portion of the

brief on appeal results in a waiver of those issues); see also In re

M.Z.T.M.W., 163 A.3d at 466 (same).           As such, this portion of Mother’s

second issue raised would be waived.

      Nevertheless, regardless of waiver, we find the entire issue to be without

merit. As to expert witnesses and qualification, this Court has stated,

            “Whether a witness has been properly qualified to give
      expert witness testimony is vested in the discretion of the trial
      court.” Kovalev v. Sowell, 839 A.2d 359, 362–363 (Pa.Super.
      2003) (citation omitted). “It is well settled in Pennsylvania that
      the standard for qualification of an expert witness is a liberal one.
      When determining whether a witness is qualified as an expert the
      court is to examine whether the witness has any reasonable
      pretension to specialized knowledge on the subject under
      investigation.” Id. (citations omitted).

             The determination of whether a witness is a qualified expert
      involves two inquiries: When a witness is offered as an expert,
      the first question the trial court should ask is whether the subject
      on which the witness will express an opinion is so distinctly related
      to some science, profession, business or occupation as to be
      beyond the ken of the average layman.... If the subject is of this


                                     - 23 -
J-A07035-19


      sort, the next question the court should ask is whether the witness
      has sufficient skill, knowledge, or experience in that field or calling
      as to make it appear that his opinion or inference will probably aid
      the trier in his search for truth. Sowell, 839 A.2d at 363 (citations
      and quotation marks omitted).

Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 200–201

(Pa.Super. 2017); see also Pa.R.E. 702. Further, “the weight to be given to

such testimony is for the trier of fact to determine.” Miller v. Brass Rail

Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995).

      Upon review, the record supports the trial court’s qualification of Dr.

Holick as an expert in vitamin D deficiency and treatment. Dr. Holick testified

that, while he practiced in the field of endocrinology, which is the study of

hormones, he focused his research on vitamin D deficiency. N.T., 8/23/17, at

240, 263. He confirmed that he is neither a pediatrician nor child abuse expert

nor geneticist. Id. at 261-62, 265.

      Moreover, the trial court “had trouble” finding Dr. Holick’s testimony to

be credible as Dr. Holick admitted he diagnosed L.V. with Ehlers-Danlos

syndrome without ever physically examining L.V. Rather, Dr. Holick inferred

that L.V. had this condition by reviewing L.V.’s medical records and examining

Mother. Id. at 266. The trial court chose to give more weight to DHS’s experts

who argued that L.V.’s numerous fractures were indicative of child abuse as

there was no signs that L.V. suffered from metabolic bone disease.

      As noted above, we are required to defer to a trial court’s credibility

findings if they are supported by the evidence. In re R.J.T., supra. The trial

court was free to resolve conflicts in the competing medical expert testimony


                                      - 24 -
J-A07035-19



and find DHS’s experts to be more credible than Mother’s experts. See In re

M.G. & J.G., supra. As the trial court’s findings are supported by the record,

the trial court was within its discretion to give Dr. Holick’s testimony the

weight and credibility it deemed appropriate.

      Third, Mother asserts that the trial court should have recused itself due

to its fixed belief that child abuse had occurred and in showing bias for CHOP

doctors over physicians who were not from Philadelphia. Moreover, Mother

asserts that the trial court exhibited hostility towards her expert, Dr. Holick.

Mother asserts, “[t]he trial court made a series of comments on the record

that would lead a reasonable person to question the trial court’s ability to be

fair and impartial when hearing child abuse and CHOP doctor testimony.”

Mother’s Brief at 29.

      The denial of a motion to recuse is preserved as an assignment of error

that can be raised on appeal following the conclusion of the case. Reilly by

Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204,

222, 489 A.2d 1291, 1300 (1985), overruled on other grounds as recognized

by Gallagher v. Harleysville Mut., 617 A.2d 790, 794 (Pa.Super. 1992).

We review a trial court’s decision to deny a motion to recuse for an abuse of

discretion. Vargo v. Schwartz, 940 A.2d 459, 471 (Pa.Super. 2007).

      Indeed, our review of a trial court’s denial of a motion to recuse is

exceptionally deferential.   Id.   (“[W]e extend extreme deference to a trial

court’s decision not to recuse”).     “We recognize that our trial judges are

‘honorable, fair and competent,’ and although we employ an abuse of

                                      - 25 -
J-A07035-19



discretion standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially.”    Commonwealth v.

Harris, 979 A.2d 387, 391-92 (Pa.Super. 2009) (citation omitted). A trial

judge should grant the motion to recuse only if a doubt exists as to his or her

ability to preside impartially or if impartiality can be reasonably questioned.

In re Bridgeport Fire Litigation, 5 A.3d 1250, 1254 (Pa.Super. 2010).

      In order to prevail on a motion for recusal, the party seeking recusal is

required “to produce evidence establishing bias, prejudice or unfairness which

raises a substantial doubt as to the jurist’s ability to preside impartially.” In

re S.H., 879 A.2d 802, 808 (Pa.Super. 2005) (citation omitted). Critically,

Code of Judicial Conduct Rule 2.2 (Impartiality and Fairness) provides that

“[a] judge shall uphold and apply the law, and shall perform all duties of

judicial office fairly and impartially.”

      In the case sub judice, we discern no abuse of discretion. Although the

court expressed confidence in the qualifications and opinions of the CHOP

physicians offered by DHS and questioned Dr. Holick’s credibility, the trial

court’s statements do not evidence bias. Rather, the trial judge’s reluctance

to credit Dr. Holick’s opinion was based on his skepticism of Dr. Holick’s

diagnosis of L.V. with a metabolic bone disease given that (1) Dr. Holick had

not examined the child and (2) doctors that had examined L.V. found no

indication of metabolic bone disease.

      Although the trial court at several points did make seemingly

inappropriate criticisms of Dr. Holick’s credentials, past achievements, and

                                       - 26 -
J-A07035-19



publications, “we are nevertheless mindful of the fact that judges, too, are

subject to human emotion.” Commonwealth v. Abu-Jamal, 553 Pa. 485,

507–508, 720 A.2d 79, 89–90 (1998) (finding trial court’s hostile and

intemperate remarks did not evidence a settled bias). We recognize that the

trial court was dealing with a difficult and emotionally-charged matter where

a two-month-old child suffered twenty-six fractures without explanation.

      Moreover, while Mother highlights statements of the trial court that she

finds objectionable, Mother ignores the trial court’s statements in support of

her position and completely contrary to any assertion of bias. Notably, the

court stated,

            [Mother and Father] are raising very legitimate claims . . .
      that these injuries may have in fact occurred as a result of genetic
      predisposition that the child suffers from. And I don’t think your
      contradictions – I don’t know if you’re going to present any
      evidence that [M]other doesn’t have this condition or not. If she
      has the condition and the child is fifty percent predisposed as
      counsel argues of having this condition, it weighs heavily with
      regard to any ruling this [c]ourt has on child abuse.

N.T., 4/5/17, at 26.    As such, we cannot find the trial judge abused his

discretion in ruling that he would be able to preside over the case fairly and

impartially.

      In Mother’s fourth and sixth issues, she claims the trial court erred in its

findings relevant to dependency, abuse, and aggravated circumstances, which

suspended the need for DHS to make efforts toward reunification. We address

these claims together, as Mother intermingles these issues in her discussion.

Mother also claims DHS failed to establish her lack of parental capacity:


                                     - 27 -
J-A07035-19


            Mother maintains that she never saw Father abuse L.V., and
     never noticed any bruising or indications of abuse after L.V. was
     alone with Father.      However, during the pendency of this
     dependency proceeding, Mother sought and obtained a Protection
     [f]rom Abuse Order against Father for threats the father made
     against her. . . . As a result, Mother and Father are no longer
     together. Mother is not blindly protecting Father. Mother’s
     actions to protect herself from Father after he made a verbal
     threat, coupled with the fact that the medical professionals that
     treated L.V. had no suspicion that L.V. was abused, are evidence
     that Mother has protective capacity and was not ignoring L.V.’s
     needs. The burden of proof that Mother lacked parenting or
     protective capacity remains on Petitioner DHS[,] and DHS failed
     to present any evidence whatsoever that Mother was unable to
     care for her children. Without such evidence on the record, the
     trial court erred when it found the children to be dependent and
     when it ordered that no efforts be made to reunify the children
     with the Mother.

Id. at 41-42 (footnote omitted).

     Our standard of review is as follows:

          [T]o adjudicate a child dependent, a trial court must
     determine, by clear and convincing evidence, that the child:

           is without proper parental care or control,
           subsistence, education as required by law, or other
           care or control necessary for his physical, mental, or
           emotional health, or morals. A determination that
           there is a lack of proper parental care or control may
           be based upon evidence of conduct by the parent,
           guardian or other custodian that places the health,
           safety or welfare of the child at risk.

     42 Pa.C.S.A. § 6302(1). “Clear and convincing” evidence has
     been defined as testimony that is “so clear, direct, weighty, and
     convincing as to enable the trier of facts to come to a clear
     conviction, without hesitancy, of the truth of the precise facts in
     issue.” In re C.R.S., 696 A.2d 840, 843 (Pa.Super. 1997)
     (citation omitted).

           In accordance with the overarching purpose of the Juvenile
     Act “[t]o preserve the unity of the family wherever possible,” see

                                   - 28 -
J-A07035-19


       42 Pa.C.S.A. § 6301(b)(1), “a child will only be declared
       dependent when he is presently without proper parental care and
       when such care is not immediately available.” In re R.T., [ ] 592
       A.2d 55, 57 (Pa.Super. 1991) (citation omitted). This Court has
       defined “proper parental care” as “that care which (1) is geared
       to the particularized needs of the child and (2) at a minimum, is
       likely to prevent serious injury to the child.” In re C.R.S., supra
       at 845 (citation omitted).

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013).

       Although dependency proceedings are governed by the Juvenile Act (42

Pa.C.S.A. §§ 6301-75), the Child Protective Services Law (CPSL) “controls

determinations regarding findings of child abuse, which the juvenile courts

must find by clear and convincing evidence.” In Interest of N.M., 186 A.3d

998, 1011 (Pa.Super. 2018) (citing In the Interest of J.R.W., 631 A.2d 1019

(Pa.Super. 1993)). Section 6303 of the CPSL defines child abuse as including,

“intentionally, knowingly or recklessly” “[c]ausing bodily injury to a child

through any recent act or failure to act” or “[c]ausing serious physical neglect

of a child.” 23 Pa.C.S.A. § 6303(b.1)(1),(7) (effective June 12, 2018).12

Bodily injury is defined as “[i]mpairment of physical condition or substantial

pain.” 23 Pa.C.S.A. § 6303(a). Serious physical neglect is defined as follows:

       Any of the following when committed by a perpetrator that
       endangers a child’s life or health, threatens a child’s well-being,
       causes bodily injury or impairs a child’s health, development or
       functioning:

       (1)    A repeated, prolonged or egregious failure to supervise a
              child in a manner that is appropriate considering the child’s
              developmental age and abilities.
____________________________________________


12The definition of child abuse remained the same as the prior version of the
CPSL, effective October 28, 2016 to February 20, 2018.

                                          - 29 -
J-A07035-19



      (2)   The failure to provide a child with adequate essentials of life,
            including food, shelter or medical care.

23 Pa.C.S.A. § 6303(a).

      Moreover, Section 6381 of the CPSL provides, in part:

      (d) Prima facie evidence of abuse.--Evidence that a child has
      suffered child abuse of such a nature as would ordinarily not be
      sustained or exist except by reason of the acts or omissions of the
      parent or other person responsible for the welfare of the child shall
      be prima facie evidence of child abuse by the parent or other
      person responsible for the welfare of the child.

23 Pa.C.S.A. § 6381.

      Upon careful review of the record, we discern no abuse of discretion with

the trial court’s determination to adjudicate the Children dependent.          The

record substantiates the trial court’s findings that Mother and Father’s conduct

placed the health, safety or welfare of the Children at risk, and thus, its

conclusion that the Children were dependent without parental care and

control. The record further corroborates the finding of child abuse as the trial

court found DHS’s medical experts credible in testifying that L.V. suffered

numerous fractures that were most likely caused by inflicted or non-accidental

trauma. Thus, we will not disturb these findings.

      As to aggravated circumstances, the Juvenile Act provides as follows:

         (c.1) Aggravated circumstances.--If the county agency
         or the child’s attorney alleges the existence of aggravated
         circumstances and the court determines that the child is
         dependent, the court shall also determine if aggravated
         circumstances exist. If the court finds from clear and
         convincing evidence that aggravated circumstances exist,
         the court shall determine whether or not reasonable efforts
         to prevent or eliminate the need for removing the child from


                                     - 30 -
J-A07035-19


          the home or to preserve and reunify the family shall be
          made or continue to be made and schedule a hearing as
          required in section 6351(e)(3) (relating to disposition of
          dependent child).

42 Pa.C.S.A. § 6341(c.1). The term “[a]ggravated circumstances” is defined

in part, as circumstances in which “[t]he child or another child of the parent

has been the victim of physical abuse resulting in serious bodily injury, sexual

violence or aggravated physical neglect by a parent.” 42 Pa.C.S.A. § 6302.

In turn, “serious bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement or

protracted loss or impairment of the function of any bodily member or organ.”

Id. Further, “aggravated physical neglect” is defined as “[a]ny omission in

the care of a child which results in a life-threatening condition or seriously

impairs the child’s functioning.” Id.

        As revealed, DHS’s medical expert opined that two-month-old L.V.

suffered twenty-six fractures, causing pain and swelling, as a result of non-

accidental trauma or abuse. Thus, the record supports the trial court’s finding

of aggravated circumstances based upon physical abuse to L.V. and its

determination requiring no efforts toward reunification. See 42 Pa.C.S.A. §

6302.

        With respect to Mother’s claim that that trial court failed to show she

exhibited a lack of parental care towards the Children, this Court has

recognized that a trial court “need not find the existence of aggravated

circumstances as to a particular party; rather, it merely must determine

whether they are present in the case. This is … because the focus is not on

                                     - 31 -
J-A07035-19



the rights of the [p]arents; instead, the children’s safety, permanence, and

well-being take precedence.” In re R.P., 957 A.2d 1205, 1219 (Pa.Super.

2008) (citation omitted).

      Accordingly, after a thorough review of the record, including the notes

of testimony, the exhibits presented, the trial court opinion, and the parties’

briefs, we discern no abuse of discretion in the trial court’s decision to

adjudicate   the   Children   dependent       and   finding    abuse,   aggravated

circumstances, and that no reasonable efforts at reunification are required.

      Mother next claims error due to the trial court’s delay in scheduling the

dependency hearing. Mother’s Brief at 36. She asserts that the trial court

took over one year from the time she had obtained her expert reports and

was prepared to proceed to complete the dependency hearing.

      Mother, however, waived this issue by failing to raise it in the court

below as the matter proceeded and was scheduled.              See Pa.R.A.P. 302(a)

(providing for waiver of issues not first raised in lower court).

            In order to preserve an issue for appellate review, a party
      must make a timely and specific objection at the appropriate stage
      of the proceedings before the trial court. Failure to timely object
      to a basic and fundamental error will result in waiver of that issue.
      On appeal the Superior Court will not consider a claim which was
      not called to the trial court's attention at a time when any error
      committed could have been corrected. In this jurisdiction ... one
      must object to errors, improprieties or irregularities at the earliest
      possible stage of the adjudicatory process to afford the jurist
      hearing the case the first occasion to remedy the wrong and
      possibly avoid an unnecessary appeal to complain of the matter.




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In re S.C.B., 990 A.2d 762, 767 (Pa.Super. 2010) (citations omitted). As a

result, we need not review this claim further.

      Lastly, Mother argues that the trial court erred in suggesting that no

reunification efforts would be made unless Mother or Father confessed to

causing L.V.’s injuries. Mother relies on In re N.M., in which this Court found

that a trial court abused its discretion in repeatedly refusing to consider

approved kinship care for a child with her grandmother based on an

unsupported speculation that the parents would visit the child without agency

supervision. This Court also found the trial court improperly expressed a fixed

presumptive idea that the child was abused and put barriers up for

reunification when her parents were fully compliant with their service plan

objectives. In addition, this Court admonished the lower court for telling the

parents that they would lose their child unless one of them confessed to

causing their child’s injuries. In re N.M., 186 A.3d at 1014 n.30. Based on

all of these observations, this Court found that the lower court had “done

everything in her power to alienate [the] parents from their child.” Id.

      Upon our review of the record, we find this case distinguishable. The

trial court held numerous hearings, heard extensive testimony, and reviewed

hundreds of pages of documents before concluding that Mother and Father

were responsible for L.V.’s injuries. After finding aggravated circumstances

existed and directing that no reasonable efforts need to be made towards

reunification, the trial court indicated the following:




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           THE COURT: Somebody did this, okay? And I don’t know
      which parent is responsible, but collectively, you’re both
      responsible.

            There could come a time in the future in this case where one
      of the parties comes forward and tells us what the real truth is,
      and find out who was the perpetrator, or if they were both
      perpetrators.

            I’ll keep an open mind as to that. However, the facts of
      this case dictate that this is a clear case of child abuse, and the
      City has met its burden by clear and convincing evidence. . . .

N.T., 4/16/18, at 78 (emphasis added).          With an open mind towards

reunification, the trial court ordered that Parents could continue visiting the

Children. As a result, we reject Mother’s claim that the trial court attempted

to extort a confession from Parents as to L.V.’s injuries.

      For the foregoing reasons, we affirm the orders of the trial court

adjudicating the Children dependent, finding abuse as to both Mother and

Father, and finding aggravated circumstances and that no efforts need be

made toward reunification.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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