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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.B., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: M.B., FATHER
                                                    No. 341 MDA 2016


                Appeal from the Order Entered January 29, 2016
               In the Court of Common Pleas of Lancaster County
              Juvenile Division at No(s): CP-36-DP-0000220-2015

IN THE INTEREST OF: J.B., A MINOR              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
APPEAL OF: A.R., MOTHER
                                                    No. 342 MDA 2016


                Appeal from the Order Entered January 29, 2016
               In the Court of Common Pleas of Lancaster County
              Juvenile Division at No(s): CP-36-DP-0000220-2015


BEFORE: BENDER, P.J.E., PANELLA, J. and STEVENS, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 31, 2016

       M.B. (Father) and A.R. (Mother) each appeal from the trial court’s

January 29, 2016 orders finding that aggravated circumstances existed as to

both Father and Mother with regard to the abuse of J.B. (Child), born in

August of 2015. The court noted that Child was deemed to be a dependent

child, that he had been the victim of physical abuse that resulted in serious

bodily injury, and that Mother and Father were the perpetrators.1       After

review, we affirm.
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1
  We consolidate Father’s and Mother’s appeals for disposition purposes in
that the cases were dealt with together below and the orders and opinions
supporting those orders were identical.
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      In an addendum to its aggravated circumstances orders, the court

explained the facts of the case and its reasons for its conclusions, stating:

      On October 17, 2015, [J.B.] (hereinafter “Child”) was treated by
      the Lancaster General Hospital Emergency Department with a
      bump on the back of his scalp. [A.R.] (hereinafter "Mother") and
      [M.B.] (hereinafter “Father”) were present with the Child at the
      hospital. At that time the Mother indicated that the Child rolled
      over and struck his head on a metal bar in the bassinet while
      sleeping.    This explanation for the injuries was deemed
      implausible by Hospital Staff.

      The Child was then transported to Hershey Medical Center where
      it was discovered that the Child had a skull fracture. The
      Mother’s explanation as to the Child doing this to himself was
      refuted by Dr. Kent P. Hymel, MD[]1 as the Child does not have
      the dexterity necessary to cause a skull fracture to himself.
            1
             Dr. Hymel is a Child Abuse Pediatrician, and
            testified as an expert in Child Abuse during the
            hearing.

      In a follow-up exam[,] it was found that the Child also had a
      compression fracture of the 11th thoracic vertebrae. Dr. Hymel
      indicated that this sort of injury would only be caused by using
      significant force to slam the Child down, or by having the Child
      fall directly on his bottom from a high location.

      Child abuse occurs when a person intentionally, knowingly, or
      recklessly causes impairment of physical condition or substantial
      pain to a child through any recent act or failure to act. Based on
      the testimony of Dr. Hymel it is clear that the multiple injuries
      sustained by the Child could not have been self-inflicted. It is
      also clear that these injuries could not have occurred except for
      the acts or omissions of the Mother and Father. Mother and
      Father did not provide convincing alternative explanations for the
      skull fracture and compression fracture of the thoracic vertebrae
      that the Child suffered while in their care.

      A perpetrator of abuse includes a parent of the child who has
      committed child abuse. Aggravated [c]ircumstances exist when
      “the child or another child of the parent has been the victim of


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        physical abuse resulting in serious bodily injury, sexual violence
        or aggravated physical neglect by the parent.”

        The Court finds by clear and convincing evidence that the Child
        is an abused child, and that Mother and Father were the
        perpetrators. Aggravated circumstances exist.

Aggravated Circumstances Orders, 1/29/16, Addendum (some footnotes

omitted).      Based on this determination, the court continued Child’s

placement with a family member, and directed that efforts to reunify the

family were to continue with a permanency review to be held in six months.

        Both Father and Mother filed timely appeals and concise statements of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). 2

Father’s brief contains the following two issues:

        A. Whether the [c]ourt erred when it found aggravated
        circumstances existed as to Father.

        B. Whether the [c]ourt erred when it determined Father was the
        perpetrator of abuse against the child.

Father’s brief at 6. Likewise, Mother’s brief contains two issues, which are

stated as follows:

        I. Whether the [c]ourt erred when it concluded that there was
        clear and convincing evidence presented to establish that
        aggravated circumstances exist as to Mother.

        II. Whether the [c]ourt erred in concluding that it was proven
        that Mother committed physical abuse resulting in serious bodily
        injury or aggravated neglect to the child.

Mother’s brief at 6.

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2
    Neither parent appealed from the dependency orders.



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       We begin by noting that our “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.”       In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).     We

review for abuse of discretion….” Id.

       Both parties argue that insufficient evidence exists in the record to

prove that they were the perpetrators of the abuse suffered by Child and

that aggravated circumstances existed.

       The relevant portion of Section 6303 of the Child Protective Services

Law (CPSL)3 defines “child abuse” as “intentionally, knowingly or recklessly

… [c]ausing bodily injury to a child through any recent act or failure to act.”

23 Pa.C.S. § 6303(b.1)(1). The existence of “child abuse” must be proven

by clear and convincing evidence. See L.Z., 111 A.3d at 1174. However,

depending on the circumstances, the identity of the abuser may be

established by prima facie evidence. Id.

       [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
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3
  Section 6303 was amended, effective December 31, 2014, and includes a
revised definition of “child abuse” that is applicable to the present case
because Child’s injuries occurred after the effective date of the amendments.
See 23 Pa.C.S. § 6303(b.1).



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        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[’s]
        evaluating the credibility of the prima facie evidence presented
        by the CYS agency and the rebuttal of the parent or responsible
        person.

Id. at 1185 (footnote omitted).           See also 23 Pa.C.S. § 6381(d) (“Prima

facie evidence of abuse”).4

        The trial court did not abuse its discretion by determining that Child

suffered abuse due to Father’s and Mother’s acts and/or omissions.            The

court discussed its recognition that Father and Mother made contradictory

statements to Dr. Hymel, to the caseworker from the Agency, and to law

enforcement officers “investigating the matter as to how their two month old

baby suffered a skull fracture, swelling of the scalp, bleeding under the skull,

and a spine fracture.”            Trial Court Opinion (TCO), 3/28/16, at 4

(unnumbered).       The court then discussed the three possible explanations

provided by testimony at the hearing, but the court concluded that none

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4
    Section 6381 provides that:

        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. § 6381(d).



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were “credible or persuasive rebuttal evidence to the presumption of

responsibility for the abuse.”5 After our review of the record, we conclude

that it supports the court’s conclusion that Father and Mother committed

child abuse pursuant to Section 6303(b.1)(1).

       We now turn to the parties’ allegation that the evidence of record did

not establish that aggravated circumstances existed.             The trial court

explained its reasoning as follows:

       Aggravated Circumstances exist when “[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 the parent.” (42 Pa.C.S. § 6302) Serious
       Bodily Injury is defined as “bodily 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 members or organ.[”] (42 Pa.C.S. § 6302) The
       statutory standard requires that the court find that abuse
       occurred, that it was inflicted by a parent, and that it is a serious
       bodily injury. For the reasons set forth in the previous section,
       this [c]ourt is convinced that Mother and Father were the
       perpetrators of the abuse.[6] The only remaining issue is whether

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5
  One explanation suggested Child’s paternal grandmother with whom
Mother and Father lived was the responsible party because she may have
been drinking when caring for Child. A second explanation considered by
the court was directed at a parent’s cousin who cared for Child for about an
hour, three or four days before Child was taken to the hospital. The third
explanation concerned Mother’s statement to a law enforcement officer that
Child had rolled off an air mattress or off Mother’s chest on two occasions.
See TCO at 4-5.
6
  Specifically, the trial court discussed the testimony it found credible and
upon which it relied, stating in its opinion:

(Footnote Continued Next Page)


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      or not the injuries suffered by the child amounted to serious
      bodily injury. As the record clearly demonstrated, this two
      month old infant suffered a fractured skull, swelling of the scalp,
      bleeding under the skull, and a fractured spine. Dr. Hymel
      testified that both injuries were painful. (N.T. 01/21/2016, [at]
      15) Due to the severity of the injuries, and the lack of a credible
      explanation, this [c]ourt determined that [Child] suffered a
      serious bodily injury.      The explanations given by [Child’s]
      parents, insofar as they could be gleaned from indirect reporting,
      lacked all credibility. These excuses were plentiful, disjointed,
      and insufficient to explain the serious injuries.       Therefore,
      aggravated circumstances exist as to the Mother and the Father.

TCO at 5-6.

      Based upon the findings by the court, which are supported by the

evidence of record, we conclude that aggravated circumstances existed

pursuant to 42 Pa.C.S. § 6302(2). Accordingly, Father’s and Mother’s issues

are without merit and we affirm the trial court’s orders.

      Orders affirmed.




                       _______________________
(Footnote Continued)

      Dr. Hymel, the examining physician made it clear that the
      multiple injuries sustained by [Child] could not have been self-
      inflicted, and that these injuries could not have occurred except
      for the acts or omissions of the adult responsible for him. (N.T.
      01/21/2016, [at] 12) Both Mother and Father are on the birth
      certificate and served as the responsible parties overseeing
      [Child.] ([I]d. at 43, 70) There was a finding of abuse against
      [Child], and the Mother and Father are the parents and the
      responsible parties.

TCO at 3.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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