J-A22040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.L., A MINOR          :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                                           :
APPEAL OF: J.L., FATHER                    :         No. 215 MDA 2016

          Appeal from the Dispositional Order December 31, 2015
            In the Court of Common Pleas of Lancaster County
           Juvenile Division at No(s): CP-36-DP-0000197-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED SEPTEMBER 13, 2016

     Appellant, J.L. (“Father”), challenges the order entered in the

Lancaster County Court of Common Pleas, which adjudicated B.L. (“Child”) a

dependent child and placed him in the custody of the Lancaster County Child

and Youth Social Service Agency (“Agency”). We affirm.

     In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

     Father raises the following issues:

        DID THE COURT ERR IN FINDING THAT [CHILD] IS A
        VICTIM OF CHILD ABUSE AND THAT FATHER IS A
        PERPETRATOR OF ABUSE, AS FATHER DID NOT CAUSE
        THE INJURY TO [CHILD OR] KNOW THE CAUSE OF THE
        INJURY TO [CHILD], AND THERE IS NO EVIDENCE THAT
        FATHER   ACTED    INTENTIONALLY, KNOWINGLY    OR
        RECKLESSLY CONCERNING HIS CHILD OR PLACING HIS
        CHILD AT RISK?
J-A22040-16


         DID THE COURT ERR IN FINDING THAT [CHILD] IS A
         DEPENDENT CHILD, AS [CHILD], BOTH PARENTS, AND
         THE SIBLING OF [CHILD] WERE A FAMILY UNIT THAT
         WANTED FOR NOTHING AND POSED NO RISK TO THE
         HEALTH, SAFETY AND WELFARE OF [CHILD]?

         SHOULD THE COURT PROPERLY HAVE GIVEN CREDIBILITY
         TO THE TESTIMONY OF THE PARENTS AS OPPOSED TO
         THE TESTIMONY OF THE NURSE PRACTITIONER THAT
         TREATED [CHILD], AS THE TESTIMONY OF THE PARENTS
         WAS CONSISTENT, BUT DURING HER TESTIMONY THE
         NURSE   PRACTITIONER   OFFERED   TWO   DIFFERENT
         DESCRIPTIONS OF THE SPECIFIC TREATMENT THAT SHE
         ATTEMPTED TO ADMINISTER TO [CHILD]?

         SHOULD THE COURT PROPERLY HAVE DISREGARDED THE
         TESTIMONY OF THE EXPERT WITNESS OFFERED BY THE
         AGENCY, AS THE OPINION OF THE EXPERT WITNESS WAS
         SPECULATIVE AND BASED UPON HOSPITAL RECORDS OF
         DUBIOUS   ACCURACY     GIVEN   THE    INCONSISTENT
         TESTIMONY PRESENTED BY THE NURSE PRACTITIONER
         THAT TREATED [CHILD] AT THE HOSPITAL?

(Father’s Brief at 8-9).

      The applicable scope and 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 A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608

Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)).

         We accord great weight to this function of the hearing
         judge because [the court] is in the position to observe and
         rule upon the credibility of the witnesses and the parties
         who appear before [the court]. Relying upon [the court’s]

                                     -2-
J-A22040-16


         unique posture, we will not overrule [its] findings if they
         are supported by competent evidence.

In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000) (quoting In re B.B., 745

A.2d 620, 622 (Pa.Super. 1999)) (citations omitted). See also In re L.Z.,

___ Pa. ___, ___, 111 A.3d 1164, 1174 (2015) (reiterating standard of

review in dependency cases requires appellate court to accept trial court’s

findings of fact and credibility determinations if record supports them, but

appellate court is not required to accept trial court’s inferences or

conclusions of law); In re D.P., 972 A.2d 1221, 1225 (Pa.Super. 2009),

appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009) (stating applicable

standard of review in dependency cases is “abuse of discretion”). Further, in

placement and custody cases involving dependent children:

         The trial court, not the appellate court, is charged with the
         responsibilities of evaluating credibility of the witnesses
         and resolving any conflicts in the testimony. In carrying
         out these responsibilities, the trial court is free to believe
         all, part, or none of the evidence. When the trial court’s
         findings are supported by competent evidence of record,
         we will affirm even if the record could also support an
         opposite result.

In re S.G., 922 A.2d 943, 947 (Pa.Super. 2007).

      The Child Protective Services Law defines “child abuse,” in relevant

part, as follows:

         § 6303. Definitions

         (b.1) Child abuse.--The term “child abuse” shall mean
         intentionally, knowingly or recklessly doing any of the
         following:


                                     -3-
J-A22040-16


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

                                   *     *   *

23 Pa.C.S.A. § 6303(b.1)(1).

     The existence of “child abuse” pursuant to Section 6303(b.1) must be

proven by clear and convincing evidence. In re L.Z., supra. Under certain

circumstances, however, the identity of an abuser may be established by

prima facie evidence.   Id.    See also In re L.V., 127 A.3d 831, 837-38

(Pa.Super. 2015).

        [E]vidence that a child suffered injury that would not
        ordinarily be sustained but for the acts 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 to another person about whom
        they had no reason to fear or perhaps that the injuries
        were accidental rather than abusive. The evaluation of the
        validity of the presumption would then rest with the trial
        court evaluating the credibility of the prima facie evidence
        presented by the CYS agency and the rebuttal of the
        parent or responsible person.

In re L.Z., supra at ___, 111 A.3d at 1185 (internal footnote omitted).

     Significantly, courts do not require a parent’s physical presence during

the injury for “abuse” to occur.       Id. at ___, 111 A.3d at 1184.   To the

contrary, our Supreme Court has stated, “parents are always responsible for

their children, absent extenuating circumstances….”     Id.   Moreover, “[t]he

inclusion of ‘omissions’ encompasses situations where the parent or

                                       -4-
J-A22040-16


responsible person is not present at the time of the injury but is nonetheless

responsible due to his…failure to provide protection for the child.” Id.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jay J.

Hoberg, we conclude Father’s issues merit no relief. The trial court’s opinion

comprehensively     discusses       and    properly    disposes     of    the   questions

presented. (See Trial Court Opinion, filed April 4, 2016, at 1-11) (finding:

(1) at time of injury, Child was six months old; on day of injury, Child was

not moving his injured arm, necessitating visit to emergency room; nurse

practitioner who treated Child during emergency room visit initially believed

injury was “nursemaid’s elbow” and performed reduction procedure; after

reduction, Child was still unable to use arm and cried in pain when arm was

moved; X-rays revealed Child had suffered spiral fracture of humerus, which

is commonly caused by twisting; Dr. Kathryn Crowell, expert in pediatrics

with specialty in child abuse, who evaluated Child, established Child’s injury

caused   Child   significant,   ongoing      pain;    spiral   fracture     caused   Child

substantial pain and impaired Child’s physical functioning; Father initially

stated Child was fine before napping in Child’s swing on day of injury; Child’s

parents later stated injury could have been caused by Child “dancing” with

his four-year-old half-sister; Child’s parents also stated nurse practitioner’s

initial treatment caused Child’s injury; clear and convincing evidence

demonstrated     Child’s   injury    was    result    of   child   abuse;    Dr.   Crowell


                                           -5-
J-A22040-16


established that Child’s parents’ explanations for injury were implausible and

would not have resulted in type of injury Child sustained; Dr. Crowell

explained it was extremely unlikely that four-year-old half-sister could have

caused Child’s injury; Child’s injury was present before treatment; Child’s

parents’ explanations for injury were inconsistent, evasive, and lacked

credibility; testimony of nurse practitioner and Dr. Crowell was credible and

persuasive; Child’s injury satisfied definition of “child abuse”; Child’s parents

were Child’s only caregivers in days leading up to Child’s injury; prima facie

evidence demonstrated Child’s parents were perpetrators of child abuse;

Child’s parents’ explanations for Child’s injury were inconsistent with medical

evidence; Child’s parents’ rebuttal did not outweigh totality of credible

evidence and medical records; (2) clear and convincing evidence showed

Child was abused and without proper parental care; Child’s injury would not

have occurred but for Child’s parents’ acts or omissions; Child, therefore, is

dependent child; (3) exhibits on record, together with medical testimony,

provided accurate timeline of events; testimony of nurse practitioner was

credible and persuasive; nurse practitioner routinely and successfully

performed treatment she performed on Child; Child’s parents’ testimony was

evasive and lacked credibility; Child’s parents did not provide consistent

explanation for Child’s injuries that fit with medical evidence; Child’s parents

were unable to answer specific questions on when injury occurred; (4) Dr.

Crowell conducted separate exam of Child, met with Child’s parents, ordered


                                      -6-
J-A22040-16


new X-rays, and reviewed records of Child’s emergency room visit; nurse

practitioner’s testimony and emergency room records were credible; Dr.

Crowell’s testimony established when she met with Child’s parents, they did

not allege Child’s half-sister caused injury, but stated they believed nurse

practitioner   caused   injury;   Dr.   Crowell   testified   nurse   practitioner’s

treatment would not have caused Child’s injury; totality of substantial

medical evidence concerning Child’s injuries was compelling and outweighed

Child’s parents’ inconsistent and inconclusive testimony).             The record

supports the court’s dependency decision.         Accordingly, we affirm on the

basis of the trial court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/13/2016




                                        -7-
                                                                                              Circulated 08/31/2016 04:12 PM




      IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                          JUVENILE COURT DIVISION
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            B. L,                                                                     CP-36-DP-197-201'
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                                                  OPINION SUR APPEAL                                        n        -u       n
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            On October 1, 201 S, the Lancaster County Children and Youth Social Service ~entt                                 ;:o
                                                                                                                              ·-4
                                                                                                            ;<
                                                                                                                     co       '-"
(hereinafter "Agency") filed a Petition for Temporary Custody of                    ·B . L~           r '(heti¥f nafter

"B.L."). B.L. is a minor male child who was born January.                     t·201s. Hearings were held on

October 2, 2015, and December 21, 2015. The Agency requested that B.L. be found a dependent

child and a victim of abuse. The Agency also requested that child's mother/ ~ ~ L ..

(hereinafter "Mother"), and child's father,            .::J': Lo      :(hereinafter "Father")(collectively

"Parents"), be found to be the perpetrators ofB.L.'s abuse. On December 21, 2015, the Court

found B.L. to be both a victim of abuse and a dependent child, and found Mother and Father, as

the child's primary caregivers, to be perpetrators of abuse against B.L.

           Mother filed a timely Notice of Appeal on February 1, 20161, and asserts three issues in

her 1925(b) statement. Father also filed a timely Notice of Appeal on February I, 2016, and

asserts four issues in his 1 925(b) statement. The cases were consolidated and this Opinion Sur

Appeal address both Statements of Errors Complained of on Appeal," Parents first argue that the

Court erred in finding the child to be an abused child and that Parents were the perpetrators of




I   The Court issued a decision on the record following the December 21, 2015, hearing and signed the
      Adjudication/Disposition Order the same day. However, the actual Order was not served on the parties because
      of the Christmas holiday until December 31, 2015.
2   In their respective State of Errors Complained of on Appeal, Parents both argue the same first two issues. The
        Court will address these together. Mother's issue three and Father's issues three and four are also similar and
       will be fully addressed together.

                                                              1
when the child was injured and, therefore, there is no evidence that they intentionally, knowingly

or recklessly placed B.L. at risk for harm. Next, Parents argue that the Court erred in finding

B.L. to be a dependent child because Mother and Father provided a safe, clean and loving

environment.

            Mother then argues that the Court erred in relying on the medical testimony and hospital

records because that evidence was inconsistent and was of questionable accuracy. Likewise,

Father argues that the Court improperly assigned credibility to the medical and expert testimony

rather than assigning credibility to Parents' testimony. Father also argues that the Court failed to

properly disregard the testimony of an expert witness who reviewed the LOH records.

            The relevant facts are summarized as follows. On August 2, 2015, the Agency received

its first report on the family. Parents arrived at Lancaster General Hospital's Emergency

Department (LOH) with concerns when B.L. woke up from a nap and was not moving his right

arm. Mother told the LOH Nurse Practitioner, Kara Garber, that she though his arm had fallen

asleep, but had called B.L.'s pediatrician who suggested it might be a nursemaid's elbow and

recommended Parents take B.L. to the ER. Notes of Testimony (N.T.), Adjudication and

Disposition Hearing, 12/21/15, 47. Based on Mother's statements and her own observations, Ms.

Garber first believed the injury to be a nursemaid's elbow.3 N.T. at 10:10-22. Ms. Garber then

attempted a reduction, the common treatment for that type of injury.

           After the reduction, B.L. still exhibited an inability to use his arm and cried in pain when

his arm was moved. Ms. Garber determined it was not a nursemaid's elbow because doing the

reduction procedure itself would not cause pain unless the child's elbow was, in fact, dislocated



3   "A nursemaid's elbow is a radial head subluxation of the radial bone at the blow joint, and so what can happen is it
      can just become subleuxed [sic] or partially dislocated and the child won't move their arm. The kind of just hold
      their arm in an uncomfortable position until it is successfully reduced." N.T. at 10: I 0-22.

                                                            2
      or child suffered some other injury. N.T. at 31. She then ordered XRays. The X-rays showed

      that B.L. had a spiral fracture of his right humerus, which is commonly caused from a twisting of

      that area. N.T. at 14. The X·Rays also showed a possible fracture of the distal ulna, the wrist

      area, of the same arm. Id. At that time, Parents denied knowledge of any recent injury or trauma.

      A spiral type fracture is considered suspicious if no trauma or fall is reported and the child is not

      mobile. N.T. at 56:6-9. Because there was no explanation given for how the child could have

      injured his arm, Ms. Garber consulted Dr. Dumomay, the supervising ER physician, with

      concerns of child abuse. N.T. at 15. The concern was reported to ChildLine, and the Agency and

      Police began investigating the report.

             Parents' testimony placed them as the only two caregivers for the child for the days

      leading up to the injury. Following the X-Rays, Ms. Garber once again asked the Parents if any

      trauma could have caused the injury. N.T. at 15-16. Mother then stated the injury might have

      been caused by B.L. 's four year old half-sister,        who would take B.L.'s arms and dance

      with him while he was in his roller chair. Ms. Garber testified that this explanation was

      inconsistent with Child's injuries:

             She's four, it would be, you know, unusual for a four year old to inflict any injury
             such as that on another child. And again, it would depend how she was holding his
             arm, how he responded thereafter. He should have been immediately symptomatic
             thereafter. I think it unlikely.

      N. T. at 49:23-25, 50: 1-2. B.L. was placed into a splint and given Tylenol with codeine for pain

· ---co-mrur.Dr.I>~isclrarge"d and ·s-em B:t:·trom-e wtm-Parents. N-:1.ar2·s-;-------------·------

             The Agency then implemented a Family Safety Plan (FSP) prohibiting any unsupervised

      contact between Parents and B.L.              The children were to reside with Paternal

      Grandparents. Following the implementation of the FSP, Parents provided two explanations to

      the caseworker for the injury:

                                                          3
                           .
            Th e exp 1anations   t h at were proviided to me were t h at d ay h~,.,jl
                                                                               I\                ' wi 'th
                                                                                       ~e,/ d ancmg
                                                                                      1was

            the child and they believed caused the injury. I explained to tnem after speaking
            with medical professionals that ... that was not a plausible explanation. And then
            at that point, that's when they had stated that they believed that the injury had been
            caused by the nurse when she had attempted the nursemaid's elbow.

     58:7-14. At the time of the Shelter Care hearing, the criminal and child abuse investigations

     regarding B.L. 's injuries remained ongoing.

            On September 17, 2015, B.L. was seen by Dr. Kathryn Crowell at Penn State Hershey

     Children's Hospital. Dr. Crowell works with a child protective team, a group of pediatricians and

     a social worker and psychologist who see children for suspected abuse and neglect. She is an

     expert in the field of pediatrics, with a specialty in the field of child abuse. Dr. Crowell and her

     team evaluated B.L. in an outpatient setting, met with Parents, obtained medical history,

     reexamined B.L., reviewed the record from LGH and took another X-Ray of the injury. Dr.

     Crowell determined that B.L.'s injury was consistent with physical abuse. Dr. Crowell testified.

     that when she met with Parents, they did not allege another child had caused the injury. At that

     time, Parents indicated that they believed Ms. Garber was responsible for B.L. 's spiral fracture.

     Dr. Crowell testified that she told Parents that a reduction would not cause a spiral fracture.

     Father then showed Dr. Crowell how Ms. Garber had performed the reduction. Dr. Crowell

     testified that Father's demonstration also would not have resulted in the twisting of the humerus

     and could not have caused the injury. N.T. at 39.

           On October 1, 2015, the Agency completed its abuse investigation, and indicated Mother
-·------~·---·---                           ...... ··------ -- ------·----
    and Father as perpetrators of abuse. At that time, the Agency petitioned the Court for emergency

     placement of B.L. to assure his safety and well-being. B.L. was placed into the physical custody

     of the Agency on October 1, 2015.




                                                         4
          At the adjudication/disposition hearing on December 21, 2015, the Agency offered the

testimony of Ms. Garber, Dr. Crowell and Elan Roth, the Agency caseworker. The Court found

the Child to be a victim of physical abuse as defined in 23 Pa. C.S.A §6303 and found Parents

were the perpetrators of that abuse. The Court also found B.L. dependent and entered a

disposition approving a child permanency plan with the primary goal of reunification with

Parents. Parents have appealed the December 21, 2015, Order of Adjudication and Disposition.

          Parents first argue the Court erred in finding B.L. to be an abused child and finding

Parents the perpetrators of that abuse. In deciding whether Parents were perpetrators of abuse to

the Child, the Court first established that the Child's injuries constituted abuse. Where child

abuse is alleged in a dependency case, the Child Protective Services Law (CPSL) and the

Juvenile Act (Act) must be construed and applied together. The Act is a procedural act giving the

Court jurisdiction over and the authority to make dependency findings, including whether or not

a child has been abused. The primary purpose of the CPSL is to provide for the quick and

effective reporting of suspected child abuse and to serve as a vehicle for providing protective

services to prevent any further abuse. In Interest of J.R.W., 428 Pa. Super. 597, 631 A.2d 1019

(1993).

          In resolving abuse allegations, the Court must refer to the definitions provided in both the

Act and the CPSL. The CPSL defines "child abuse", in part, as, "intentionally, knowingly or

recklessly doing any of the following: (1) causing bodily injury to a child through any recent act

of failure to act." §6303(b.1 )( 1 ). "Bodily injury" is defined as "impairment of physical condition

or substantial pain." §6303(a). "Intentionally," "knowingly" and "recklessly" are terms defined

in 18 Pa.C.S. §302 (relating to general requirements of culpability). "Perpetrator" is also defined

as "a person who has committed child abuse as defined in this section," and can be a parent of



                                                   5
the child. Id. When determining whether child abuse occurred, innuendo and suspicion alone are

not enough to compel a finding of child abuse. Matter of Read, 693 A.2d 607 (Pa. Super. 1997).

Instead, the abuse must be established by clear and convincing evidence. Id.

        The record supports and the Court found by clear and convincing evidence that the

injuries that B.L. sustained impaired his physical condition and resulted in substantial pain,

pursuant to Section 6303(b. l ). Parents testified the Child was not moving his arm, necessitating

the visit to LGH. The X-Rays revealed B.L. suffered a spiral fracture of his humerus, which

impaired his physical functioning and explained his unwillingness to use his arm. Dr. Crowell

testified that in addition to B.L. 's inability to move his arm, the injury that caused a spiral

fracture, would have caused significant, on-going pain. It is clear, B.L. suffered substantial pain

from his spiral fracture. He would not move his arm and cried when other's tried to move it.

Furthermore, an analysis of the record reflects the substantial evidence presented in support of

this Court's finding that B.L. 's injuries satisfied the definition of "child abuse" and the identity

of the parents as the perpetrators of that abuse. Evidence of the requisite intentional, knowing, or

reckless act causing bodily injury can be established through circumstantial evidence of

sufficient quantity and quality. Malice need not be proved to establish child abuse. This

circumstantial evidence is more fully discussed in the next part of this opinion.

        The Superior Court has long recognized the applicability and importance of the

evidentiary presumption in Section 638l(d) regarding the identity of the abuser. While the

Agency has the burden of proving the existence of child abuse by clear and convincing evidence,

the identity of the perpetrator of that abuse need only be established through prima facie

evidence in certain circumstances. §6341(c). 23 Pa. C.S.A. § 638l(d) provides:

        Evidence that a child suffered child abuse of such a nature as would ordinarily not
        be sustained or exist except by reason of the acts or omission of the parent or other

                                                   6
              person responsible for the welfare of the child shall be prima facie evidence of child
              abuse by the parent of other person responsible for the welfare of the child.

      §6381(d); B.B. v. Department of Public Welfare, 17 A.3d 995; C.S. v. Department of Public

      Welfare, 972 A.2d 1254.

              When a child is in the care of multiple parents, both parents are accountable for the care

      and protection of the child, whether they actually inflict the injury or failed in their duty to

      protect the child. Prima facie evidence is sufficient to establish that the parent perpetrated that

      abuse unless the parent rebuts the presumption. Pennsylvania case law states that the

      presumption satisfies the intent element unless the prima facie evidence is successfully rebutted.

      In the Interest of L.Z., 111 A.3d 1164 (Pa. 2015). Parents may present evidence demonstrating

      that they did not inflict the abuse, potentially by testifying that they gave responsibility to

      another person or the injuries were accidental rather than abusive. Evaluation of the validity of

      presumption then rests with the trial court to weigh the credibility of the prima facie evidence

      presented by the Agency and the rebuttal of the Parents. Id.

              The record shows that Parents were B.L. 's sole caregivers the days leading up to his

      injury. Mother testified that B.L. was fine before napping in his swing the day of the injury. She

      testified that she left the Child alone with Father for about an hour while she showered and

      helped a neighbor. She further testified that upon returning to the living room, Father called her

      attention to Child's injury. Parents do not argue any other individuals were caring for B.L. during
···--·-than~----·····-------   ...

              Moreover, the Court found neither of Parents' explanations for B.L. 's injury to be

      credible. They failed to rebut the presumption. Dr. Crowell testified that neither of the

      explanations Parents gave would have resulted in the type of injury B.L. sustained. It was

      extremely unlikely that a four year old child would be able to cause the injury given the amount

                                                         7
      of force necessary to cause a spiral fracture. Moreover, even if the four year old had caused the

      spiral fracture, B.L. would have resulted in the impairment of his arm and cried out immediately

      from pain. According to Parents, it was only after his nap that they noticed B.L. wasn't using his

      arm. Therefore, the Court did not find the explanation that Child's sibling inflicted the injury

      credible.

              Upon being told that their first explanation was inconsistent with the medical evidence,

      Parents then accused the LOH Nurse Practitioner, Ms. Garber, of causing the injury. It is not

      contested that B.L. displayed symptoms of an injury to his arm prior to his visit to LOH. The

      Parents' account indicates that B.L. wasn't using his arm and that he cried when his arm was

      moved. The record is quite clear that B.L.' s injuries were present prior to Ms. Garber' s

      reduction. Even after the reduction was attempted, B.L. continued to cry. This suggested to Ms.

       Garber that it was not a nursemaid's elbow. After reviewing the X-Rays, it was determined that

      the pain was caused from the spinal fracture.

              After again being told his explanation was not consistent with the medical evidence,

      Father then testified in an attempt to blame Ms. Garber. Contrary to all the other evidence in the

      record, Father testified that B.L. was so upset by Ms. Garber's presence that he would cry when

       she was around but did not cry any other time. Father also testified that the child was

      comfortable during the second attempt at reduction performed by Dr. Dumornay, and was fine

        immediately afterward. Ironically, these were the exact behaviors Ms. Garber indicated in her
.   ----~---·-----                             " ··--···-·-----·--··· ··-···------          ---·-~·-·      ......   --   ....

       testimony that a Child would display before and after a successful reduction. The Court infers

      that Father is implying Ms. Garber performed the reduction incorrectly and the doctor performed

      the reduction correctly. However, the Court does not follow Father's logic. Specifically, if the

      Court were to believe Father that Ms. Garber caused the spiral fracture during the reduction, then



                                                        8
B.L. would not be calm during the second reduction, but instead would be in pain from that new

injury.

          Ms. Garber routinely and successfully performed reductions approximately once a week

and treats them using the same method. Furthermore, Dr. Crowell testified that a spiral fracture

would not occur from an ordinary reduction. Parents' attempts to shift the blame lacks any

credible explanation for B.L. 's injuries.

          Therefore, the Court found that clear and convincing evidence was presented that the

injuries the Child sustained were the result of child abuse. The injuries could not be acceptably

explained away by his parents. The medical evidence established that the Child's injuries were

non-accidental and were consistent with child abuse. The totality of the record establishes by

clear and convincing evidence that the injuries were either intentionally or knowingly or

recklessly inflicted on the Child. Prima facie evidence was presented as explained above that

Mother and Father were perpetrators of the abuse.

          Parents also appeal the finding of dependency. The Courts have held that "A finding of

abuse may support an adjudication of dependency." In re C.R.S., 696 A.2d 840, 843 (Pa. Super.

1997). That is exactly the basis for the Court's decision. Parents argue that they did not cause the

abuse and posed no risk to the child, and therefore, a finding of dependency was made in error.

The Court again disagrees. The totality of the record establishes that clear and convincing

evidence that B.L. was a victim of child abuse as defined in the statute. "The fact that his parents

express bewilderment over the cause of his injuries does not obviate their responsibility." In the

Interest of J.0.V., 454 Pa. Super. 630, 686 A.2d 421, 423 (1996). In determining whether there

exists proper care, equal weight is given to acts and omissions since parental duty includes

protection of child from harm §6302(1).



                                                  9
       In determining dependency, the Court's primary consideration was the safety and health

of the Child, the victim of the physical abuse. Clear and convincing evidence existed that the

Child was abused and without parental care and that Child's injuries would not have occurred

but for Parents' acts or omissions as his primary caregivers. The record supports the Court's

finding that B.L. is a dependent child.

       Parents also argue that Ms. Garber's testimony was contradictory and questionable. The

Court examined the exhibits admitted to the record to gain a more accurate timeline in instances

where testimony was unclear. Despite Parents arguments to the contrary, the Court found the

testimony of Ms. Garber and Dr. Crowell to be credible and persuasive. In contrast, the Court

found Parents' testimony to be evasive and lacking credibility. Parents were unable to provide a

consistent explanation for B.L. 's injuries that would fit with the medical evidence. They were

unable to answer any specific questions on when the original injury occurred. And they

attempted to blame others once they discovered the medical evidence rejected their prior

explanation.

       Furthermore, Father argues that Dr. Crowell's testimony should be disregarded because it

was based on speculation and LGH records. Father's argument simply ignores that Dr. Crowell

and her team conducted a separate exam of Child, met with Child's parents and even ordered

new X-rays, in addition to reviewing LGH records. To be clear, while the Court did find Ms.

Garber's testimony and the LGH records credible, it did not rely solely on the statements

provided by Ms. Garber in rendering its opinion. The Court relied on the totality of the

substantial medical evidence concerning the child's injuries. "Substantial evidence" is defined

under 23 Pa. C.S. §6303 as "evidence which outweighs inconsistent evidence and which a

reasonable person would accept as adequate to support a conclusion." The totality of the credible



                                                10
and relevant medical evidence in this record is compelling and outweighs the inconsistent and

inconclusive testimony received from the parents.

         Based upon the evidence presented and having resolved all issues of credibility, the Court

found for the above stated reasons, that the Agency established by clear and convincing evidence

that B.L. was an abused child and that B.L. is a dependent child. Furthermore, the record

establishes that the Parents were the perpetrators of his abuse. All issues raised by Mother and

Father in their respective 192S(b) statements have been fully addressed. The Court's

determination that the Agency met its burden and the Order of Adjudication and Finding of

Abuse should be affirmed. The Clerk of Courts is directed to transmit the record to the Superior

Court.

                                                       BY THE COURT:



Date:    IJ,;,11, 2o!G,                                                                   E




ATTEST:
                                                                    I certify this document to be filed
                                                                    in the Lancaster County 0-ffice of

Copies to:        David Natan, Esq. o<h
              . . ~lbert J. Mei~r~_~sq. _
                                         o+>
                                                 o'V    §4¥, .. •
                                                             t~
                                                                    the Clerk of the Courts.
                                                                ,,,\1\\ttr~r.,,,,,
                                                            ~~''it\~:~,
                                                           ~;;;,
                                                                    rr          ,ri,'\~
                                                                                ,i~~--- . -- - F·
                                                                               ••. ~:\
                                                                                                     J
                                                                                               · - -67.r;z;.~-        '

                  Patricia Dunlevy- Williams, Esq.
                                                        i~···           t ,'1!:i§
                                                                               ,.,.. ~
                  John P. Stengel, Esq. o~        o~"-~ ·,},~·
                  Children and Youth Agency (2)                       ~~:·~Jt                 Jacque~,n E. Pfursich
                                           >
                     E. L... ,, Mother V'°" ..\u
                     J, t.., 1, Father      ilbv~e_
                                                                  fll,nu~Ul\\\l
                                                                                                 Clerk of Courts




                                                           11
