J-S68013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: M.M.-A., A             :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: LACKAWANNA COUNTY               :
    CHILDREN AND YOUTH                         :
                                               :
                                               :
                                               :   No. 928 MDA 2017

                  Appeal from the Order Entered May 10, 2017
      In the Court of Common Pleas of Lackawanna County Civil Division at
                        No(s): CP-35-DP-0000154-2016


BEFORE:      LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 01, 2017

        The Lackawanna County Office of Youth and Family Services (“Agency”)

appeals from the order, entered in the Court of Common Pleas of Lackawanna

County, denying a finding of child abuse and ordering bone density and genetic

testing of the minor, M.M.-A. (“Child”). Upon careful review, we affirm.

        On November 12, 2016, Child, then three months old, was taken by her

parents to Moses Taylor Hospital for treatment of a possible cold.       During

treatment, hospital staff discovered that Child had multiple rib fractures,1 for

which her parents, V.A. and A.M. (collectively, “Parents”) had no explanation.

Child and her sister – who did not present with any injuries – were taken into

protective custody based upon Child’s unexplained injuries.




____________________________________________


1   It was ultimately determined that Child had approximately 38 rib fractures.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S68013-17



       On November 15, 2016, the Agency filed a petition seeking a finding of

dependency of Child and also seeking a finding of child abuse against Parents

pursuant to the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-6386

(the “Act”). After a multi-day adjudication hearing, on May 10, 2017, the trial

court issued findings of fact and conclusions of law, as well as an order

adjudicating Child to be dependent pursuant to 42 Pa.C.S.A. § 6302, based

on evidence that Child suffered 38 rib fractures while in Parents’ care and

control, as well as the fact that Child had been diagnosed with failure to thrive.

The court declined, however, to issue a finding that Child was a victim of

abuse. The court also ordered further health evaluations in the form of testing

for genetic disorders and/or bone deficiency disorders.

       On June 7, 2017, the Agency filed a notice of appeal and concise

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

1925(a)(2). The Agency raises the following claims for our review:

       1. Whether the [t]rial [j]udge erred . . . and/or abused her
          discretion by not determining credibility of witnesses, including
          expert witnesses and resolving conflicts in the testimony?

       2. Whether the trial judge erred and/or abused her discretion by
          not making a finding of child abuse against the parents.

       3. Whether the trial judge erred and/or abused her discretion in
          reviewing the medical testimony by admitting novel medical
          testimony from Doctors Holick, Hyman and Gootnick in
          violation of the Frye[2] standard, and by accepting Dr.

____________________________________________


2 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) (holding novel scientific evidence
admissible if methodology underlying evidence has general acceptance in
relevant scientific community).

                                           -2-
J-S68013-17


         Gootnick as a pediatric radiology expert despite a lack of
         qualifications or training in said specialty[?]

      4. Whether the trial judge erred and/or abused her discretion by
         finding that pediatrician Dr. Burke had diagnosed the child as
         fail[ing] to thrive (finding of fact #167) which is not supported
         by the evidence; and further erred and disregarded test results
         showing no evidence that the child had OI (osteogenesis
         imperfecta) and had normal Vitamin D levels, by ordering
         genetic testing, bone density disorders testing and [that the
         Agency] follow any and all recommendations when the experts
         agree [Ehlers-Danlos Syndrome] has no test to identify it, and
         no metabolic disease or genetic disorders of the child have
         been diagnosed by treating physicians[?]

Brief of Appellant, at 8.

      The Agency first asserts that the trial court erred and/or abused its

discretion by failing to make determinations as to the credibility of witnesses,

including expert witnesses, and failing to resolve conflicts in the testimony.

This claim is meritless.

      In this case, four different experts testified regarding the cause of Child’s

fractures. One of those experts, Kent Hymel, M.D., testifying on behalf of the

Agency as an expert in child abuse pediatrics and pediatrics, concluded that

the injuries were the result of child abuse. The other three experts concluded

that Child’s injuries had clinical explanations and were not caused by abuse.

Susan Gootnick, M.D., an expert in pediatric radiology, testified that she was

certain that Child’s fractures were caused by rickets and that there was no

evidence of non-accidental trauma. Charles Hyman, M.D., an expert in child

abuse, testified that Child suffered from bone fragility and that rickets was a

possible contributing factor. Doctor Hyman further testified that there were

“absolutely no objective criteria that there was abuse.” N.T. Hearing, 7/5/17,

                                      -3-
J-S68013-17



at 68.    Finally, Michael Holick, M.D., Ph.D., testified as an expert in

endocrinology,   metabolism and nutrition, calcium,       collagen disorders,

metabolic bone disease, and Vitamin D deficiencies. Doctor Holick diagnosed

both of Child’s parents with EDS, hypermobility type 3. As a result, Dr. Holick

determined that Child had a 75% chance of also suffering from that genetic

disorder, which would place her at higher risk of bone fracture.

      In its opinion, the trial court stated that it “considered the direct and

circumstantial evidence and expert medical opinions” presented by the

Agency. However, the court ultimately found more compelling the testimony

of the three other experts who each concluded, to a reasonable degree of

medical certainty, that Child’s injuries were not the result of non-accidental

trauma. In making this determination, the court factored in other evidence,

including that Parents regularly took Child for medical visits to both her

pediatrician and specialists and that Child’s physician, a mandatory reporter,

never made any reports of child abuse. See Trial Court Opinion, 5/7/17, at

5-6. In sum, it is apparent that the trial court weighed the evidence before

it, resolved any conflicts in testimony to the best of its ability based on the

totality of the evidence presented, and concluded that the Agency failed to

establish by clear and convincing evidence that Parents had abused Child. We

can discern no abuse of discretion.

      The Agency next claims that the trial court erred and/or abused its

discretion by failing to make a finding of child abuse against Parents. The

Agency asserts that it presented clear and convincing evidence that Parents

                                      -4-
J-S68013-17



were reckless with respect to Child’s torn frenulum as well as her fractured

ribs and, as a result, the court should have made a finding of abuse under

section 6303(b.1) of the Act. This claim is meritless.

      We begin by noting our standard and scope of review in dependency

cases:

      The standard of review which this Court employs in cases of
      dependency is broad. However, the scope of review is limited in
      a fundamental manner by our inability to nullify the fact-finding of
      the lower court. We accord great weight to this function of the
      hearing judge because he is in the position to observe and rule
      upon the credibility of the witnesses and the parties who appear
      before him. Relying upon his unique posture, we will not overrule
      his findings if they are supported by competent evidence.

Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997), quoting In re R.R.,

686 A.2d 1316, 1317 (Pa. Super. 1996) (citations omitted).

      Child abuse is defined under section 6303 of the Act, in relevant part,

as follows:

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

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

                                      ...

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

23 Pa.C.S.A. § 6303(b.1). A finding of abuse must be supported by clear and

convincing evidence.    In Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.

Super. 1993).




                                     -5-
J-S68013-17



      Here, the Agency asserts that it met its burden of establishing Parents’

recklessness in causing damage to Child’s frenulum and her rib fractures. With

respect to the torn frenulum, the Agency cites the testimony of Dr. Hymel that

Child could not have caused the injury to herself and the injury could have

been caused by a bottle being forced in Child’s mouth. The Agency asserts

that Dr. Hyman’s testimony, that frenulum injuries in children are very

common, was “not specific enough to be convincing.” Brief of Appellant, at

14. As to Child’s rib fractures, the Agency cites Parents’ claim that they did

not know how the injuries occurred and the testimony of Dr. Hymel, who

excluded metabolic bone disease as a potential cause and, instead, “gave a

solid opinion with a reasonable degree of medical certainty of physical abuse.”

Id. at 16. Based on this evidence, the Agency claims that it established that

Parents acted recklessly and that the court erred in failing to make a finding

of child abuse as defined in section 6303(b.1) of the Act.

      In presenting this claim, the Agency is essentially asking this Court to

reweigh the evidence in its favor. That, however, is not our role. Rather, we

must defer to the trial court, who sees and hears the witnesses, can determine

their credibility and, ultimately, renders a decision informed by the court’s

own observations and its longitudinal understanding of the case. So long as

the court’s conclusions are supported by the record, we are in no position to

disturb its decision. Matter of C.R.S., supra.

      Although Dr. Hymel opined that Child’s injuries were the result of abuse,

the trial court heard from multiple other witnesses, both fact and expert, who

                                     -6-
J-S68013-17



concluded otherwise. Child’s own pediatrician, Christine Burke, M.D., testified

that she never suspected that Child’s torn frenulum was non-accidental.

Rather, based on the large size of the nipple on Child’s bottle, Dr. Burke

concluded that the tear likely came from pressure exerted by the nipple.

Doctor Hyman also testified that torn frenula are “very common” in children

and can be caused by bottles or pacifiers. N.T. Hearing, 5/3/17, at 52. He

concluded that Child’s torn frenulum was “absolutely” not caused by abuse.

Id. at 56. Similarly, with regard to the rib fractures, three experts testified

as to their belief that the fractures were caused not by non-accidental trauma,

but rather by bone fragility.

      It was within the province of the trial court to evaluate and weigh the

conflicting testimony and arrive at a finding based on its determination as to

the credibility of the witnesses. See Commonwealth v. Ratushny, 17 A.3d

1269, 1272 (Pa. Super. 2011) (“The weight to be accorded conflicting

evidence is exclusively for the fact finder, whose findings will not be disturbed

on appeal if they are supported by the record.”). Accordingly, we decline the

Agency’s invitation to reweigh the evidence.      The trial court’s findings are

supported by the record and will not be disturbed.

      Next, the Agency claims that the trial court erred in admitting novel

medical testimony from Drs. Holick, Hyman and Gootnick in violation of Frye.

The Agency also alleges that the court erred in admitting Dr. Gootnick as an

expert in pediatric radiology despite a lack of qualifications or training in that

specialty. The first claim is waived and the second is meritless.

                                      -7-
J-S68013-17


      In determining whether novel scientific evidence is admissible in
      criminal trials, Pennsylvania courts apply the test set forth in Frye
      []. See Commonwealth v. Topa, [] 369 A.2d 1277 ([Pa.] 1977)
      (adopting the Frye test in Pennsylvania). Under Frye, novel
      scientific evidence is admissible if the methodology that underlies
      the evidence has general acceptance in the relevant scientific
      community. See Grady v. Frito–Lay, Inc., [] 839 A.2d 1038,
      1044–1045 ([Pa.] 2003). While the United States Supreme Court
      has since found that the Frye test has been superseded by the
      more permissive Federal Rules of Evidence, see Daubert v.
      Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [] (1993),
      Pennsylvania courts are not bound by the Federal Rules of
      Evidence, and continue to apply the Frye standard, see Grady,
      [] 839 A.2d at 1044.

Commonwealth v. Einhorn, 911 A.2d 960, 974–75 (Pa. Super. 2006).

“Whether a witness is qualified to render opinions and whether his testimony

passes the Frye test are two distinct inquiries that must be raised and

developed separately by the parties, and ruled upon separately by the trial

courts.” Grady v. Frito-Lay, Inc., 839 A.2d at 1045–46.

      While the Agency now claims that the testimony of Drs. Holick, Hyman

and Gootnick was inadmissible pursuant to Frye, it never filed a motion

seeking to preclude the doctors’ testimony on the basis of Frye, nor did the

Agency raise the issue at all at the time of hearing in this case. Generally,

“issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P., Rule 302(a). Because the Agency failed to

preserve this claim in the trial court, the issue is waived.

      The Agency also claims that the trial court erred in admitting Dr.

Gootnick as an expert in pediatric radiology. This claim is premised solely on




                                      -8-
J-S68013-17



the fact that Dr. Gootnick is not a Board Certified pediatric radiologist. The

Agency is entitled to no relief.

      The admission or exclusion of evidence, including the admission
      of testimony from an expert witness, is within the sound discretion
      of the trial court. We may only reverse upon a showing that the
      trial court clearly abused its discretion or committed an error of
      law. To constitute reversible error, an evidentiary ruling must not
      only be erroneous, but also harmful or prejudicial to the
      complaining party.

McClain ex rel. Thomas v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000)

(citation, ellipses and brackets omitted).

      In Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995), our Supreme

Court held that a witness without a medical degree, who acted in the dual role

of mortician and county coroner, could give expert testimony as to time of

death. In doing so, the Court noted that

      [i]t is well established in this Commonwealth that the standard for
      qualification of an expert witness is a liberal one. The test to be
      applied when qualifying an expert witness is whether the witness
      has any reasonable pretension to specialized knowledge on the
      subject under investigation. If he does, he may testify and the
      weight to be given to such testimony is for the trier of fact to
      determine.

Id. at 528.

      Here, Dr. Gootnick testified that she holds a medical degree and has

been certified by the American Board of Radiology since 1977. She testified

that she participated in a three-month rotation in pediatric imaging during her

residency and reads pediatric radiological images on a daily basis as part of

her practice. She testified that, at the time of her residency, there was no



                                     -9-
J-S68013-17



fellowship in pediatric radiology and that she has “more experience than

somebody with a current pediatric [radiology] fellowship.”          N.T. Hearing,

5/4/17, at 8.

      Based on the foregoing, it is readily apparent that Dr. Goodnick

“possesses more knowledge than is otherwise within the ordinary range of

training, knowledge, intelligence or experience” in pediatric radiology.

McClain, 761 A.2d at 157, quoting Miller, 664 A.2d at 528. The fact that she

does not hold a board certification in the specialty is of no moment.

Accordingly, the trial court did not abuse its discretion in admitting Dr.

Gootnick as an expert in pediatric radiology.

      Finally, the Agency claims that the trial court erred in making a finding

of fact that Dr. Burke, Child’s pediatrician, had diagnosed Child with failure to

thrive. The Agency further asserts that the court erred in ordering further

testing to determine if Child suffers from any genetic bone density disorders.

These claims are meritless.

      We begin by noting that it is unclear as to how the Agency is aggrieved

by either of these alleged errors. Indeed, it would appear that the Agency

would look with favor upon the court’s finding that Child was diagnosed with

failure to thrive, as it was “[b]ased in part on Dr. Burke’s testimony that Minor

Child was diagnosed as failing to thrive . . . [that] this [c]ourt found that Minor

Child was without proper parental care or control.”         Trial Court Opinion,

7/7/17, at 13. In any event, the Agency is incorrect that there is no support

for this finding. Specifically, Dr. Burke testified as follows:

                                      - 10 -
J-S68013-17


      Q: In your treatment of [Child], was she ever treated as a baby
      that was one labelled as failure [sic] to thrive?

      A: Yes, but it was difficult to distinguish because she was having
      so many mouth issues. I wasn’t sure if that was contributing to
      her slow weight gain.

N.T. Hearing, 3/23/17, at 16.

      Similarly, the Agency’s claim that the court erred in ordering genetic

testing is meritless. “In a dependency case, a hearing court is given broad

discretion in meeting the goal of entering a disposition ‘best suited to the

protection and physical, mental, and moral welfare of the child.’” In re S.M.,

614 A.2d 312, 315 (Pa. Super. 1992), quoting In re Lowry, 484 A.2d 383

(Pa. 1984). In her Rule 1925(a) opinion, the Honorable Julia Munley cogently

sets forth her rationale for ordering the tests of which the Agency complains.

See Trial Court Opinion, 7/7/17, at 13-15. Based on Judge Munley’s findings,

we can discern no abuse of discretion on her part in ordering that Child

undergo further testing to determine whether she suffers from any genetic

disorders that may have contributed to or caused the injuries that form the

basis for the adjudication of dependency. The parties are instructed to attach

Judge Munley’s opinion in the event of further proceedings in this matter.




                                    - 11 -
J-S68013-17



Order affirmed.



       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




                           - 12 -
                                                                                        Circulat




                                              :       IN THE COURT OF COMMON PLEAS
                                                          OF LACKAWANNA COUNTY

IN RE: M. M. -A.                                              JUVENILE DIVISION

                                                              CP-:35- DP -154   -2016

MUNLEY, JULIA, J.                                                                             July 7, 2017

         RULE 1925(a) OPINION IN SUPPORT OF ORDER DATED MA'-Y 0, zwi7
                                                                                                       .       >
         The Lackawanna County Office of Youth and Family Services              ("0.0AfileTa Pg.
seeking a finding of dependency of Minor Child.M. M. -A. (D.O.B. 081 /7614f-Iased one

allegations of physical abuse by Mother V                 A       ("Mother") and Fattrei:h.        !
                                                                                                           .
("Father") and failure by Minor Child's parents to provide proper parental care or control.                -




OYFS's Petition also sought a finding of child abuse against Mother and Fathtr pursuant to the

Child Protective Services Law, 23 Pa.C.S.A.       §   6301 et ceq, ("CPSL")

         A sheltercare hearing was held on November 14, 2016. The adjudication hearing was

held on March 23, 24; April 11; and May 3, 4, 2017.

         Having weighed and considered the relevant evidence and testimony in this matter, this

Court entered an Order dated May 10, 2017 and also issued specific Findings of Fact and

Conclusions of Law. Sec Pa. Rule S. C. P. 1409 mt. (citing In re LaRue, 244 Pa. Super. 218,

366 A.2d 1271 (1976); In re Frank W.D., Jr., 315 Pa. Super. 510, 462 .A.2d 708 (1983); In re

Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976)). On May 10,2017, this Court granted

OYFS's petition in part, finding that Minor Child is a dependent child as defined by 42 Pa. C.S.

§   6302 based on evidence that Minor Child sustained as many as thirty-eight rib fractures while

in Mother and Father's care and control, Prior to the discovery of the rib fractures, Minor Child

was also diagnosed as failing to thrive and Mother and Father missed at least two appointments

with Minor Child's pediatrician after a failure to thrive diagnosis was made. This Court denied

                                            Page      1   of 16
  OYES 's petition in regard to a finding of child abuse under the CPSL for the reasons set forth in

 the Findings of Fact and Conclusions of Law and discussed below.

         On June 7, 2017, OYFS filed a Notice of Appeal and a Concise Statement of Errors.

 Although the reasons for this Court's May 10, 2017 Order appear of record in the

 aforementioned Findings of Fact and Conclusions of Law, this Court, having the benefit of the

 transcripts from the adjudication hearing, provides this brief Opinion pursuant to Pennsylvania

 Rule of Appellate Procedure 1925(a). The matters raised by OYFS on appeal are listed below

 and addressed in turn.

        The trial judge erred by and/or abused her discretion by not determining credibility          of
        witnesses, including expert witnesses and resolving conflicts in the testimony.

        As trier of fact, this Court is the sole judge of the credibility   of witnesses. See In re

Adoption of J.J. 511 Pa. 590, 594, 515 A.2d 883, 886 (1986). Conflicts in testimony are to be

resolved by this Court. Id.

        In considering this matter, this Court heard witness testimony from several fact witnesses

and medical expert witnesses. As detailed in the Findings of Fact and Conclusions of Law, this

Court fully considered all of the relevant evidence and testimony and closely scrutinized the

medical experts' testimony and conclusions in light of the other facts in this case.

        An evaluation of the credibility of witnesses can be found in the Court's Findings of Fact

and Conclusions of Law. This Court found all witnesses to be at least partially credible and

noted where witness testimony was less reliable or less weighty to the Court in light of the other

facts that emerged over the course of the hearing.     See e.g. 1173, 88, 91-102 (discussing the

facts that weakened the credibility of OYFS expert Dr. Kent Hymel and eroded his conclusion

that child abuse occurred).




                                            Page 2 of 16
       Resolution of the conflicts in testimony can also be found in the
                                                                               Court's Findings of E.trt

                                                             high number of fractures to
and Conclusions of Law. For example, Dr. Hymel relied on the
                                                                        91-92. Defense expert
support his conclusion that there was child abuse. 03/24/2017 Trans. at
                                                              to support his conclusion that
Dr. Charles Hyman also relied on the high number of fractures
                                                                      Trans. at 56-59. Where
Minor Child had a medical disorder causing bone fragility. 05/03/2017
                                                                       Court resolved conflicting
the Medical experts disagreed regarding a finding of child abuse, this
                                                                         to meet OYFS 's
testimony when it found that the testimony of Dr. Hymel was insufficient
                                                                 and convincing evidence when
burden of proving child abuse against Mother and Father by clear
                                                                     Dr Hyman, and Dr. Susan
contrasted with the testimony of defense experts Dr. Michael Holick,

Gootnick.


    21 The trial judge erred and/or           abused her discretion by not making a finding of child
       abuse against the parents.
                                                                                extensive expert
       This Court had the opportunity to fully evaluate the evidence, including
                                                                  Based on the totality of the
medical testimony, and to weigh the credibility of all witnesses.
                                                         Conclusions of Law, OYFS failed to
circumstances, as summarized in the Findings of Fact and
                                                                                                           .




                                                           the victim of child abuse as defined
show by clear and convincing evidence that Minor Child was

by 23 Pa. C.S.   §   6303(b.1), (c).
                                                                            doing any of the
        The term "child abuse" means intentionally, knowingly or recklessly

following:

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

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

        23 Pa. C.S.A.     §   6303 (b.1).



                                                   Page   3   of 16
tl.




                                                            or creates a risk of injury or harm to a
             "Conduct that causes injury or harm to a child
                                                         is no evidence that the person acted
      child shall not be considered child abuse if there
                                                    causing the injury or harm to the child or creating a
      intentionally, knowingly or recklessly when
                                                   C.S.A.       §   6303(c).
      risk of injury or harm to the child." 23 Pa.
                                                     child abuse by the clear and convincing
              OYFS must demonstrate the existence of

                                                         determinations. See In re L Z 631 Pa. 343,
      evidence standard applicable to most dependency
                                                and convincing evidence is defined "as testimony that
      361, .111 A.3d 1164, 1174 (2015). Clear
                                                  as to enable the trier of fact to come to a clear
      is so clear, direct, weighty and convincing

                                                     of the precise facts in issue." in re K.M. 53 A.3d 781,
      conviction, without hesitance, of the truth
                                                   quotations omitted).
      786 (Pa. Super.2012) (citations and internal
                                                                   and convincing that Mother or Father
              The evidence and testimony in this case is not clear
                                                     to cause Minor Child's injuries or to create a risk of
       acted intentionally, knowingly, or recklessly
                                               Pa.C.S.A.   §   302(b)(1)-(3).
       injury or harm to the child. See   18

                                                                       the direct and circumstantial
               In reaching the above conclusion, this Court considered
                                                       by OYFS in support of their petition. Dr.
       evidence and expert medical opinions presented
                                                 have resulted from sudden and dangerous
       Hymel opined that the rib fractures might
                                               as a mechanism of injury. 03/24/2017 Trans.
                                                                                            at 82, 143.
       compressions to the Minor Child's chest
                                            that Mother, Father, or any other person actually made
       However, there was no other evidence
                                            chest. Rather, Dr. Holick, Dr. Hyman, and Dr. Gootnick
       sudden compressions to Minor Child's
                                                  Minor Child's rib fractures within a reasonable
       each provided non-abusive explanations for

       degree of medical certainty.

               Dr. Holick opined that Minor Child's rib
                                                        fractures were fragility fractures that could


        occur at birth or with normal handling
                                               of an infant, such as picking up the child or swaddling.


                                                      Page 4 of 16
04/10/2017 Trans. at 74-75. According to Dr. Hyman, Minor Child had a constellation of

factors that caused rib fractures, tom frenulum, and failur&to thrive that were not abuse.

05/03/2017 Trans. at 55-61. Dr Hyman opined that Minor Child had some type of bone fragility

and that the high number of healing or occult rib fractures supported his opinion. Id. at 56-59.

Dr. Hyman also indicated that non-abusive reasons for Minor Child's injuries were either

ignored or not objectively considered by Minor Child's treating physicians. Id. at 56, 68, 105-

106. Dr. Gootnick testified that she observed radiographic evidence of healing
                                                                               rickets on Minor

Child's X-Ray films, called a rachitic rosary. 05/04/2017 Trans. at 18. She testified that the

rachific rosary is a pathognomonic sign, a characteristic unique to rickets. Id. at 22. Dr.

Gootnick opined within a reasonable degree of medical certainty that Minor Child had abnormal

bones based on her X-Ray findings and that there was no radiological evidence of non -accidental
                                                                                     observed on
trauma. Id. at 18-21, 27. Dr. Gootnick also suggested that some of the abnormalities

X-Ray   as   healing fractures were actually signs of rickets. Id. at 19-20.

        Furthermore, two of the defense medical experts in this matter testified that considerable

bone density loss had to occur before it would be observable on an X -Ray. 04/11/2017 Trans. at

57 (Natick: 30-50% loss of bone density); 05/03/2017 Trans. at 70-71 (Hyman 20%-40% loss of

bone density). Dr. Hymel, on behalf of OYFS, could not completely rule out that Minor Child

had reduced bone density, See 03/24/2017 Trans. at 135-137, 175-177.

        There was other evidence that this Court weighed before finding that Mother and Father
                                                                                       a risk of
did not intentionally, knowingly, or recklessly cause Minor Child's injuries or create
                                                                          to medical
injury or harm to Minor Child. Minor Child was taken by Mother and Father

providers at least twelve times in three months, including her pediatrician
                                                                            and to several

                                                                                     at 40.
specialists outside the Scranton area. 03/23/2017 Trans. at 44-45; 05/03/2017 Trans.



                                               Page 5 of 16
                                Taylor Hospital     by Mother and Father where the rib fractures
Minor Child was taken to Mcises
                                     2016. Id. at 38-39, 53-54. Prior to
                                                                         November 12, 2016,
were discovered on November 12,
                                       specialists    did not make any reports of child abuse for
Minor Child's pediatrician and heating
                                   even though these physicians    were mandated reporters. Id. at
torn frenulum or failure to thrive
                                                                               Minor Child was not
     119,  245.  Additionally, OYFS's     caseworker Lisa Herie testified that
110,
                                                                              referral at Moses
                                         when Herie responded to the initial
in any discomfort and was not crying
                                                                                Minor Child was
                                      the time Herie responded to the hospital,
Taylor Hospital. Id. at 54-56. At
                                                                           did not present with any
                                       Child's one-year-old sister I.M.-A.
restrained in a car seat. Id. Minor
                                                                                            Id. at 63.
                   injury when   Minor   Child M.M.-A.'s rib fractures were discovered.
 signs of physical
                                                                                          it was not
                consideration of all the evidence  and testimony presented in this case,
         After
                                                                               abuse.
                                          Mother and Father committed child
 clear and convincing to this Court that
                                                                                                   by
                                                 her discretion in reviewing the medical evidence
         The trial judge erred and/or abused                                                 in
                                               front Doctors Holick, Hyman, and Gootnick
         admitting novel medical testimony                                               radiology
         violation of the Frye standard
                                          and by accepting De: Gootnick as a pediatric
                                            in said specialty.
         expert despite a lack of training
                                                                                            was
                                               of Dr. Holick, Dr. Hyman, and Dr. Gootnick
         In this matter, the expert testimony
                                                 Rules of Evidence 702-705.
  properly admitted pursuant to Pennsylvania
                                                                                     by knowledge, skill,
                                           witness who is qualified as an expert
           Rule 702(c) provides that "[a]
                                                                                 or otherwise if the
                                       may testify in the form of an opinion
  experience, training, or education
                                        accepted in the relevant field."
                                                                           The admission of expert
  expert's methodology is generally

                         is an evidentiary matter for the trial court's discretion. Grady v. Frito-Lay
   scientific testimony
                                                                                  a wide latitude for the
                  546, 559,  839 A.2d  1038, 1046 (2003). Rule 702 provides
   Inc. 576   Pa.
                                                                     600-01 (Pa. Super. 2006).
              of expert testimony. See Long v. Mejia,896 A.2d 596,
   admission
                                                the admission of the medical testimony
                                                                                        of Dr.
          In this appeal, OYES   now challenges
                                                                     States 293 F. 1013 (D.C. Cir.
           Dr. Hyman,    and Dr. Gootnick pursuant to Frye v. United
   Holick,

                                                Page 6 of 16
1923). On a preliminary note, OYFS did not move to exclude expert testimony prior to the

adjudication hearing. During the hearing, OYFS did not raise the issue of the admissibility of

testimony of any of the defense medical expert witnesses on the grounds of an issue with the

experts' methods. Although there were no objections by OYFS in regard to the defense experts'

methods during the hearing, this Court considered the expert opinions and admitted Mother and

Father's expert witness testimony pursuant to the above-cited Pennsylvania Rules of Evidence.

        Under Frye the proponent of novel scientific evidence bears the burden of establishing

that the methodology used by the expert has gained general acceptance in the relevant field, but

not "that the scientific community has also generally accepted the expert's conclusion." Grady

576 Pa. at 558, 839 A.2d at 1045. As an exclusionary rule of evidence, Frye "must be construed

narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search

for truth." Trach v. Fellin 817 A.2d 1102, 1104- (Pa. Super. 2003) (en bane), app. denied, 577 Pa.

725, 847 A.2d 1288 (2004).

        "[Ain expert witness need not cite to medical literature or medical treatises to support his

opinion." Catlin v Hamburg, 56 A.3d 914, 921 (Pa. Super. 2012)(citing Joyce v. Blvd. Phys.

Therapy & Rehab. Ctr., P.C. 694 A.2d 648, 656 (Pa.Super. 1997); Smith v. Grab 705 A.2d 894,

900 (Pa. Super. 1997)). However, at a minimum, "the proffered expert testimony must point to,

rely on or cite some scientific authority-whether facts, empirical studies, or the expert's own

research-that the expert has applied to the facts at hand and which supports the expert's ultimate

conclusion" Snizavich v. Rohm & Haas Co. 83 A.3d 191, 197 (Pa. Super. 2013). Expert

testimony as to a causal relationship may be admissible, even if based solely on the experts

review of medical records and his experience and expertise in the applicable medical field, when

the expert can point to some scientific authority that supports the causal connection. Id. Medical



                                           Page 7 of 16
                                                      experiences in their fields of expertise in
witnesses may rely upon their individual professional
                                                     v. Moses Taylor Hospital, No. 11 -CV -
formulating opinions regarding medical matters. Page

1402, 2016 WL 2606520 *5 (Lacka. C.C.P.)(Nealon,
                                                 J.)(citations omitted).

               a. Dr, Holick

                                                             F. Holick, Ph.D., M.D., a
        Mother and Father presented the testimony of Michael
                                                     chief of endocrinology, and director of the
professor at Boston University Medical Center, prior
                                                 Program. 04/11/2017 Trans. at 23-25; Exh.
Ehlers-Danlos Syndrome ("EDS") Clinical Research

4. Dr. Holick testified that he is the director
                                                of the bone health care clinic at Boston University

                                                          include Vitamin D, metabolic bone
Medical Center. Id. at 24. Dr. Holick's areas of research
                                                          over 500 times in these fields. Id. Dr.
disease, and collagen disorders and he has been published
                                                        nutrition, metabolism and collagen
Holick was thus admitted as an expert in endocrinology;
                                                             Id. at 31, 41.
disorders; metabolic bone disease; and vitamin D deficiency.
                                                            Dr. Holick diagnosed Mother and Father
        Within a reasonable degree of medical certainty
                                                                          physical examination of
 with EDS hype     ability type 3, based on a review of factors after his

                                                    used to diagnose Mother and Father with
 both parents. Id. at 44 49. The factors Dr. Holick
                                                               findings and Mother and Father's
 EDS hyperrnobility type 3 were based on Dr. Holick's clinical
                                                 diagnosis called a Beighton score to diagnose
 self-reporting. Id. Dr. Holick used a method of
                                                  3. Id. at 45-48. At no time did OYES raise any
 Mother and Father with EDS hyperraobility type
                                                       Mother and Father with EDS.
 objections to the use of Beighton scoring to diagnose

         Dr. Holick also opined within a reasonable degree
                                                           of medical certainty that because

                                                that Minor Child has EDS, a 75% chance. Id. at
 Mother and Father have EDS, it was very likely
                                                 simple mathematics because EDS is an
 51-54. Dr. Holick reached that conclusion using
                                                     also testified that there is no genetic test to
 autosomal dominant genetic disorder. Id. Dr. Holick


                                             Page 8 of 16
                                                 type 3. Id. at 69. Given Dr. Holick's
determine whether a person has EDS hypermobility
                                                        methods, this Court admitted and
testimony and no challenge from OYES as to Dr. Holick's
                                                      in the medical and scientific community.
considered Dr. Holick's methods as generally accepted
                                                        had been properly raised and
       Even if an objection to Dr. Holick's methodology
                                                 did not determine that Minor Child suffered from
considered at the hearing, this Court ultimately
                                                 multiple, bilateral rib fractures. Rather, this Court
EDS or that EDS was the specific cause of her
                                             that non-abusive explanations for Minor Child's rib
found credible from Dr. Holick's testimony
                                         out in this matter by the treating physician, Dr. Hymel
fractures existed and could not be ruled

                 b.   Dr Hyman
                                                       of Charles Hyman, M D, who was
        Mother and Father also presented the testimony

 qualified by this Court as an expert in the
                                             field of child abuse. At the hearing, OYES and the

 Guardian ad Litem objected regarding Dr
                                                                           -
                                              Hyman's qualifications only specifically, his lack of

                                               and that he had been precluded from testifying about
 board certification in child abuse pediatrics
                                                   Dr. Hyman was not board-certified in child
 bones in past cases. 05/03/17 Trans. at 27-28.
                                                 provide answers on the board-certification test that
 abuse because, as he stated, he would have to
                                               OYES and the Guardian ad Litem's objections were
 he did not believe were accurate. Id. at 26.
                                      as a child abuse expert based on his education,
 overruled and Dr. Hyman was admitted

 experience, research, and extensive review
                                            of the medical records. Id.
                                                         Dr. Hyman's methodologies. "Whether
         There was no objection at the hearing regarding

 a witness is qualified to render opinions
                                           and whether his testimony passes the Frye test are two

                                                      separately by the parties." Grady 576 Pa. at
 distinct inquiries that must be raised and developed
                                               Commw. v. Arroyo 555 Pa. 125, 723 A.2d 162,
 558-59, 839 A.2d at 1045-46 (2003) (citing

  170 (1999)).


                                              Page 9 of 16
                                                                                                  and has
                                       testified that he      is a board-certified pediatrician
       As to qualifications, Dr. Hyman
                                                                              8-9. Early in his medical
                              medicine    for 50  years. 05/03117 Trans. at
been involved in pediatric
                                                             in newborn intensive care at
                                                                                           Pittsburgh
                                   a two-year   fellowship
career, Dr. Hyman completed
                                                                                 Hyman developed a
                         Id. at 5. After   moving    to Southern California, Dr.
Children's Hospital.
                                                                                                      five
                                                    Hospital  in 1976 and chaired that department for
                              Linda Children's
 child abuse team at Loma
                                                                      a member of the hospital faculty.
                     to maintaining    a private practice and being
 years in addition
                                                in  the child protection team at St. Bernadines Hospital,
                                was   involved
 Id. Thereafter, Dr. Hymel
                                                                            5, 12-13, 18. Dr. Hymel
                         with Lorna    Linda  Children's Hospital. Id. at
  while still affiliated

                                until about 2000. Id. at 6.
 remained in private practice
                                                       years of his   professional work on research and
          Dr. Hyman   has concentrated the last thirty
                                                         regarding child abuse is the professional
                               the predominant views
  studies that are contrary to
                                                                                                   and the
                               the views held by        the American Academy of Pediatrics
  medical community, including
                                                                         advised he is a member of a loose
                                                                                                              -
                                      Id.  at  19, 21-22.    Dr. Hymel
  Society of Pediatric Radiology.
                                                                                               injury." Id. at
                                            "interested  in sorting out the debate on infant
  knit group of medical professionals
                                                                                               that disputes
                              that there   is another  segment of the medical community
  7. Dr. Hyman explained
                                                                                                     Dr.
                                            called  "the  child  abuse community." Id. at 22-23.
                             Dr.  Hyman
  the conclusions of what
                                                                                      areas of trauma,
                                are peer  -reviewed    studies and literature in the
   Hyman testified that   there
                                                                                                 positions held
                                            and  bone  science   that challenges or refutes the
   genetics, endocrine, biomechanics,
                                                                                                           child
                                                   and the  Society  of Pediatric Radiologists regarding
                                  of Pediatrics
   by the American Academy
                                                                                in approximately fifty-six
                           As  part of his   work,   Dr. Hyman has testified
   abuse. Id. at 21-22.
                                                                                                     Hyman
                                      general    pediatrics  and  child abuse. Id. 12-13, 18. Dr
    trials since 2002 in the
                             field of
                                                                                              this matter.
                                       expert   medical   opinion   regarding child abuse in
                                   an
    was thus qualified to render




                                                  Page 10   of 16
                                                        certainty, Dr. Hyman opined
                                                                                          thatthe injuries to
                                 degree    of  medical
        Within a reasonable
                                                           05/03/17 Trans. at 55-61. In
                                                                                             support of his
                          the result   of  child  abuse.
Minor Child were not
                                                       abuse and that there were non
                                                                                         -abusive reasons for
                     were   no  objective    signs  of
opinion that there
                                                                                records and his experience
                  injuries, Dr.  Hyman      cited his review of the medical
Minor Child's
                                                                                  is not novel.
                       to other  research     and studies. Id. This approach
along with citation
                                                              by OYFS and the Guardian
                                                                                              ad Litem during
                                          were   challenged
      .  Dr. Hyman's conclusions
                                                                                                   Child met '
                                          cross-examination,    Dr. Hyman agreed that Minor
                                Under
 the adjudication hearing.
                                  by  the  American    Academy     of Pediatrics for suspicion of child abuse,
 seven of nine factors listed
                                            is no  "gold standard"   for a child abuse diagnosis. Id. at 79-84,
                                   there
  but testified that he believes
                                                         conclusions are generally
                                                                                      accepted, only that an
                        not  prove   that  an  expert's
   116. A party need
                                                                                       Frye is not implicated
                       are generally     accepted.   See Grady supra. Moreover,
  expert's methods
                                                                                                 expert testimony
                                 into   the  courtroom;   rather, it applies only to proffered
   every time science    comes
                                                                                                            was
                                             Pa. at 557, 839  A.3d   at 1045. As indicated above, there
                                 Id.,  576
   involving novel science.
                                                                                                 not used in a
                                             methodology     and Dr. Hyman's methods were
   nothing novel about Dr. Hyman's
                                           opinions were properly admitted.
    novel way. Thus, Dr. Hyman's

                    c.   Dr. Gootnick
                                                                            radiologist. The qualifying
                           that  Dr.  Gootnick  was admitted as a pediatric
            OYFS objects
                                                                      witness has any reasonable
                      to testify as  an expert witness is whether the
   test for a witness
                                                                                 Miller v. Brass Rail
                  specialized  knowledge    on the subject Under investigation.
   pretension to
                                                                                        may testify and
                                          664  A.2d 525,  528 (1995). If she does, she
    Tavern, Inc., 541  Pa. 474, 480-81,

                              such testimony is for the      trier of fact to determine. Id.
    the weight to be given to
                                                  she graduated        from the University of California, San
             As to Dr. Gootnick's qualifications,
                                                         and residency              in radiology. 05/04/2017
              Medical School and completed an internship
    Francisco


                                                    Page 11 of 16
                                                                                             was a resident,
                            no  pediatric   radiology   fellowships when Dr. Gootnick
Trans. at 4. There were
                                                                                           her residency
                                 but she  did  undergo    a three-month rotation during
according to Dr. Gootnick,
                                                   imaging. Id. at 5, 7-8. Dr.
                                                                                   Gootnick has been board
                          reviewed     pediatric
where she specifically
                                                                                      certified in the field of
                                Board   of Radiology     since 1977, but not board
certified by the  American
                                                                                          radiology, Dr.
                        Id.  at 4-5,  10.  Although    not board certified in pediatric
 pediatric radiology.
                                                                                                           every
                                 has  read  and  interpreted   radiologic images of pediatrics patients
 Gootnick testified that she
                                                           Id. at 5, 8-9. Of the pediatric
                                                                                             images that she
                               of  her 42  year  career.
 workday over the course
                                             she mostly reads the X -Rays
                                                                               of newborns. Id. at 14. Based
                            testified  that
  reviews, Dr.-Gootnick
                                                and extensive experience in
                                                                                 reviewing radiological
                      education,     training,
  on Dr. Gootnick's
                                                                                      expert in the field of
                       and   children,   the  Court  permitted her to testify as an
   imaging of infants
                                                                                to do so.
                         Id.  at  16.  Dr.  Gootnick was clearly qualified
   pediatric radiology.
                                                       pursuant to Frye. There was
                                                                                        nothing novel about Dr.
           OYFS also challenges        Dr. Gootnick
                                                                                                     based on her
                                    consisted   of  reviewing    X-Rays and offering an opinion
    Gootnick's methods, which
                                                       her   qualifications. and her use
                                                                                         of generally accepted
                                experience.     Given
    education, training, and
                                                                                             was properly
                           her   expert  medical    opinions, Dr. Gootnick's testimony
    methods in reaching
                                 702.
   admitted pursuant to Rule
                                                         discretion by finding that the
                                                                                           pediatrician Dr.
                                          abused her
            The trial fudge erred and/or                            (finding ofFact #167) which is not
            Burke had diagnosed    the child' is failure to Indite                 test results showinggio
                           the  evidence;  and  further erred and disregarded                            D
            supported  by
                                       had 01' (oSteogenesis  imperfecta) and had normal Vitamin
            evidence that   the child                                          disorders testing and follow
                                          disorders testing, bone density
            levels, by ordering   genetic                                           the experts agree that
                                               in the Adjudication Order when
             any and all recommendations                                               metabolic disease or
                                     Syndrome]    has no test to identifi, it, and no
            EDS lEhlers-Danlos                have been diagnosed by the
                                                                               treating physicians.
             genetic disorders   of the child

                     a. Dr. Burke       and the Failure to Thrive Diagnosis
                                                                                                           at
                                        of Christine Burke,         M.D., Minor Child's pediatrician
             OYFS offered the testimony
                                                                         Minor Child from birth and
                             Center as a fact witness. Dr. Burke treated
     Scranton Primary Health

                                                    Page 12 of 16
                                                  issues over her first three
                                                                              months of life prior to
                     Child had several  medical
testified that Minor
                                                             medical issue was a diagnosis
                                                                                               of failure
                      03/23/2017   Trans. at 199-219. One
 OYFS involvement.
                                                    diagnosis and treatment
                                                                              for failure to thrive as
                                   testified to the
 to thrive. Dr. Burke specifically

follows:
                                                                           ever treated
                                                   Child M.M.-A.], was she
                  Q. In your treatment of [Minor
                                                  as failure to thrive?
                  as a baby that was one labelled
                                               to distinguish because she
                                                                           was having so
                  A. Yes, but it was difficult                                    her slow
                       mouth    issues. I wasn't sure if that was contributing to
                  many
                   weight gain.

       '   Id. at 212.
                                                          consulted with a pediatric
                                                                                       hospitalist in the
                                             that she
           Additionally, Dr. Burke explained
                                                                                               placement
                                                                                          Child's
                            Marks,  regarding      the failure to thrive, prior to Minor
  Geisinger system, Dr.
                                                                                         that Minor Child was
                                    As   of December       7, 2016, Dr. Burke testified
                        216,  278.
  with OYFS. Id. at
                                                                               in part on Dr. Burke's
                     diagnosis   of failure   to  thrive. Id. at 285. Based
  still carrying the
                                                                                                              to
                                        diagnosed      as failing to thrive and Mother and Father's failure
                                   was
  testimony that Minor Child
                                                                      was without proper parental
                                                                                                    care or
                                Court   found    that  Minor   Child
  attend appointments, this
                                                                              by the record.
             Dr.  Burke's   diagnosis  of failure to thrive is supported
   control.
                                                                                                    Syndrome
                                         bnperfecta,       Vitamin .D Levels, and Ehlers-Danlos
                    b. Osteogenesis
                                                           child, the Court may make
                                                                                         additional orders best
                            found  to be   a dependent
            If the child is
                                                                                                         42 Pa.
                                             physical,    mental,  and  moral welfare of the child. See
                                       and
   suited to the safety, protection
                                                                                to remain with her
                        (providing   that  the  Court may permit the child
    C.S.A. § 6351(a)
                                                                                           Based on the evidence
                                   custody     subject   to conditions and limitations).
    parent/guardian or transfer
                                                                                                            Order
                                       hearing,     this Court  included a provision in the Adjudication
    and testimony in the five-day
                                                                                                   and for Minor
                                        for  genetic    disorders  and bone deficiency disorders
    that Minor Child be evaluated



                                                   Page 13 of 16
                                        pa.rents to follow any   and all recommendations. See May
Child's foster parents / kinship foster

10, 2017 Order, 1112(b).
                                                                                   imperfecta
                                          Child was found not to have osteogenesis
         OYFS raises the issue that Minor
                                                at Penn State Hershey Medical
                                                                              Center, as
                 Vitamin  D levels upon testing
and   had normal
                                                                              and no metabolic
                 Hymel. OYFS also argues that EDS has no test to identify it,
explained by Dr.
                                                                     treating physicians.
                                    child have been diagnosed by the
disease or genetic disorders of the
                                                                              his credibility. See
                                          Dr. Hymel's testimony and weighed
        This Court carefully considered

 Findings of Fact and Conclusions
                                      of Law, May 10, 2017 Ti 60-104.

                                                          disorders and disease as a cause
                                                                                           of the
                                            out genetic
          Dr. Hymel testified that he ruled
                                                                                     03/24/2017
                                      disease,    rickets, and Vitamin D deficiency.
 fractures, including metabolic. bone
                                                                                   found nothing
                   73-74. Dr. Hymel opined that Minor Child had normal bones and
 Trans. at 66-68,
                                                                      Id. at 66, 151, 184. Dr.
                 there was something wrong  with Minor Child's bones.
 to suggest that
                                               Test, which was negative for osteogenesis
 Ilymel  ordered a Connective Tissue Genetics

                                   at 77. However, the negative
                                                                test for osteogenesis imperfecta did
  imperfecta for Minor Child.  Id.
                                                                                   Dr. Hymel also
                 rule out the condition,  according to Dr. Hymel. Id. at 182-184.
  not completely
                                                                                    136.
                                              not be visible radiologically. Id. at
  testified that loss of bone density may
                                                                                                  Id. at 74.
                       also testified  that he excluded  EDS as a diagnosis for Minor Child.
           Dr. Hymel
                                                                                                     other
                          stated  he  has not  diagnosed  EDS and would rely on geneticists and
   However, Dr. Hymel
                                                                                       a patient with EDS.
                       EDS.   Id. at.37, 44.   Dr. Hymel did not recall ever having
   experts regarding

  Id. at 43.
                                                                                           and
                                                   the testimony of Dr. Holick, Dr. Hyman,
         In contrast, Mother and Father presented
                                                                      Hyman, Dr. Gootnick, and
                 This Court carefully considered the testimony of Dr.
   Dr. Gootnick.
                                                                                   of Law, May 10,
                  weighed their credibility. See Findings of Fact and Conclusions
   Dr. Holick and


                                                 Page 14 of 16
                                       Minor Child had some         type of bone fragility and that
2017 ¶j 105-151. Dr. Hyman opined that
                                                         his opinion. 05/03/17 Trans. at 56-57.
the high number of healing or.occult fractures supported
                                                  of rickets on Minor Child's radiological
Dr. Gootnick testified that she observed evidence
                                             examined Mother and Father and diagnosed         both
studies. 05104/2017 Trans. at 18. Dr. Holick
                                       on a review of clinical factors. 04/11/2017 Trans. at
                                                                                             44-
with EDS hypermobility type 3, based
                                           Child had a 75% chance of having EDS. Id. While
49, 5I-54. Dr. Hoick opined that Minor
                                                     EDS hypermobility type 3, Dr. Holick's
there may not be a specific genetic test to diagnose
                                              may diagnosed through a history and physical
 testimony identified one manner in which EDS

 examination.
                                                        including the treating physicians, this
        Given the testimony of all the medical experts,
                                               to be more fully evaluated for the genetic
                                                                                           and
 Court found it was warranted for Minor Child
                                            extensively by    the medical experts in this case.
 bone density disorders that were discussed
                                                  of these medical diagnoses during his treatment of
 OYFS's expert, Dr. Hymel, excluded several
                                                                                              testified
                                                Dr. Hymel's testimony. Rather, Dr. Hymel
 Minor Child. This Court did not disregard
                                           for the diagnosis of EDS and that the current testing
                                                                                                    for
 that he would defer to other specialists
                                                                                              Mother
                                             rule out that condition. Dr. Holick diagnosed
 osteogenesis imperfecta does not totally
                                             -3 based on clinical testing, not genetic
                                                                                       testing, and
 and Father with EDS hypermobility type
                                                 of having the condition. Out of concern for Minor
 opined that Minor Child had a 75% chance
                                                  found it warranted for further medical evaluations
  Child's best interests and welfare, this Court
                                            evidence and testimony provided to this Court during
  to be ordered out based on the medical

  these proceedings.




                                              Page 15 of 16
           Conclusion

           For all the above reasons, this Court
                                                 granted OYFS's petition in part,   finding that Minor
   Child. M.M.-A. is a dependent child,
                                        but denied OYFS's petition in regard to a
                                                                                  finding     of child
   abuse against Mother V        -   k      and Father A          Mc   -   Additionally, this Court
  ordered further measures regarding medical
                                             evaluations for Minor Child M.-M.A. that
                                                                                             were
  appropriate and in her best interests.




                                                 BY THIS COURT:

                                                    /7.


                                                 HONO Nrs     t    JULIA K. MUM EY

 cc:    Written notice of the enhy of the foregoing
                                                       -1/4R e 1925(a) Opinion has been
 each party pursuant to Pa. R Civ. P. 236
                                            t'irt) and (d) by
                                                                                         provided to
                                                               transmitting time -stamped copies to:
Joseph Gardner Price, Esq.
                                                          Craig P. Kalinoski, Esq.
Leigh Redmond, Esq.
                                                          108 North Washington Ave.
Lackawanna County Office of Youth and
                                                          Suite 604
Family Services
                                                          Scranton, PA 18503
Interdepartmental Mail                                    Attorney for Mother
Kevin O'Hara, Esq.
                                                      Edward Blodnick, Esq.
Guardian ad Litem
                                                      1325 Franklin Ave.
Interdepartmental Mail                                Suite 555
                                                      Garden City, NY 11530
 Lori A. Barrett, Esq.                                Attorney for Mother -Pro Hac Vice
 345 Wyoming Ave.
 #1                                                   George Gretz, Esq.
 Scranton, PA 18503                                   304 N Washington Ave.
 Attorney for Mother                                  Scranton, PA 18503
                                                      Attorney for Father




                                           Page 16 of 16
