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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: C.B., A 

MINOR

APPEAL OF: A.B., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 121 EDA 2020

Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001613-2019

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IN THE INTEREST OF: K.B., A 

MINOR

APPEAL OF: A.B., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 127 EDA 2020

Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001614-2019

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IN THE INTEREST OF: A.B., A 

MINOR

APPEAL OF: A.B., FATHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 129 EDA 2020
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Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001615-2019

*****

IN THE INTEREST OF: C.B., A 

MINOR

APPEAL OF: S.B., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 124 EDA 2020

Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001613-2019

*****

IN THE INTEREST OF: K.B., A 

MINOR

APPEAL OF: S.B., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 125 EDA 2020

Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001614-2019

*****

IN THE INTEREST OF: A.B., A 

MINOR

APPEAL OF: S.B., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
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: No. 128 EDA 2020

Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001615-2019

*****

IN THE INTEREST OF: Y.C., A MINOR

APPEAL OF: S.B., MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 130 EDA 2020

Appeal from the Order Entered December 16, 2019

In the Court of Common Pleas of Philadelphia County Juvenile Division at 

No(s): CP-51-DP-0001612-2019

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

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 02, 2020

A.B. (Father) appeals from the trial court’s orders adjudicating his three 

minor children, C.B. (born 1/16), and twins, K.B. and A.B. (born 5/19), 

dependent. S.B. (Mother) also appeals from the same orders adjudicating 

those minor children dependent, as well as an order adjudicating her other 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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child, Y.C.

1 (born 9/10), dependent.2

 The court also made a finding of child 

abuse as to Father and Mother (collectively, Parents). Here, medical 

testimony established that five-month-old K.B.’s injuries: were the result of 

non-accidental trauma; occurred while Father and Mother were responsible 

for K.B.’s welfare; and neither Father nor Mother could provide an explanation 

of how the injuries occurred. Under these facts, the court was required to 

apply the evidentiary presumption found in 23 Pa.C.S. § 6381(d), which 

establishes a prima facie case of abuse by the persons who were responsible 

for the child when the abuse occurred. Because Mother and Father failed to 

rebut that presumption, we are constrained to affirm the orders. 

Father and Mother are the biological parents of C.B., K.B. and A.B. 

Mother also has a child, Y.C., whose biological father has passed away. Father 

and Y.C. have a close, father-son type relationship. Since Mother and Father 

both work outside the home, they hired two babysitters (Babysitter #1 & 

Babysitter #2)3to take care of Children when they are at work. Y.C.’s paternal 

grandmother (Paternal Grandmother) also helps care for Children.

____________________________________________

1 We will refer to all four children, collectively, as “Children.”

2 We have sua sponte consolidated Father’s and Mother’s appeals as the orders 

appealed and questions involved are the same. See Pa.R.A.P. 513 

(consolidation of multiple appeals).

3 Babysitter #1 took care of the twins, K.B. and A.B., while Babysitter #2 took 

care of Y.C. and C.B.
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K.B. and A.B. attended the Goddard School in October 2019. On the 

evening of October 11, 2019, Mother and Father had dinner at the Palm 

Restaurant in Philadelphia, while K.B. and A.B. were cared for by Babysitter 

#1. When Mother and Father returned home from dinner at approximately 

11:30 p.m., Children were asleep. The next morning, a Saturday, Mother and 

Father left the house early to go shopping for winter coats in Delaware for the 

Children; Children stayed with Babysitter #1 and Babysitter #2 while they 

were gone. Mother and Father returned home from shopping around 5:30 

p.m., at which time Babysitter #1 went to her home for a brief period and 

then returned to Parents’ home around 8:00 p.m. where she resumed her 

babysitting duties and stayed the night.4 The following day, Y.C. and C.B. 

went to a pumpkin patch with Babysitter #2, while Babysitter #1 watched the 

twins at home when Mother and Father went to New York for the day. Mother 

testified that she received a picture of the twins in their car seats from 

Babysitter #1 at 4:30 p.m. on the 13th and that there did not appear to be 

anything wrong with K.B. at that time. Neither babysitter noticed anything 

amiss with Children that day, except that K.B. fell asleep on his right side 

which was unusual as he always slept on his back. When K.B. woke up that 

evening before Parents returned home from New York City, Babysitter #2

____________________________________________

4 Mother testified that Babysitter #1 stays overnight on Fridays and Saturdays 

to help with the twins.
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testified that his cry was not normal and sounded like “a grunt cry, almost as 

if he w[ere] hurt.” N.T. Dependency/Abuse Hearing, 12/16/19, at 146-48. 

Paternal Grandmother,

5

 Babysitter #1, and Babysitter #2 were at the house 

when Mother and Father returned home from New York around 10:10 p.m. 

Babysitter #1 left to go home about 10 minutes after Mother and Father 

returned home. Although K.B. was fussy that evening, it did not concern 

Mother or Father since he was the more difficult of the twins. 

Early on the morning6 of October 14, 2019, K.B. let out a loud “scream”

that woke up Parents. N.T. Dependency/Abuse Hearing, 12/16/19, at 72. 

Father found K.B. in distress; Mother noticed that when K.B.’s hand was 

touched he would scream. Paternal Grandmother noticed that K.B. had 

swelling on his right arm and hand on the morning of the 14th as well. That 

morning, around 8:00 a.m., Mother and Father took K.B. to Virtua Hospital 

(Virtua) in Voorhees, NJ, to be evaluated. Virtua is approximately a one-hour 

drive from Parents’ home. A series of radiographs known as a “skeletal 

survey” showed that K.B. had a broken bone in his upper right arm and a right 

shoulder fracture; because there were no signs of healing, an examining 

doctor determined that the injuries had been sustained no earlier than seven 

____________________________________________

5 Paternal Grandmother stays overnight on Sundays and sleeps on the same 

floor of the home as the twins.

6 Father’s testimony was inconsistent with regard to the time he discovered 

K.B. was injured. While he stated K.B. screamed and woke him up around 

3:00 a.m. on the morning of the 14th, he also testified that he did not realize 

K.B.’s arm was injured until 6:30-7:00 a.m. when he went in to see him that 

morning.
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to ten days prior to the imaging. Mother and Father indicated that they had 

no idea how the Child sustained these injuries. In the 24 hours preceding 

the discovery of the injuries, K.B had been in the care of three individuals in 

addition to Mother and Father: Paternal Grandmother, Babysitter #1, and 

Babysitter #2. 

K.B. was transferred from Virtua to the emergency department of the 

Children’s Hospital of Philadelphia (CHOP). At CHOP, Dr. Brian William 

Brennan, M.D., a child abuse and maltreatment fellow, evaluated K.B. for 

suspected child abuse. Doctor Brennan testified that after evaluating K.B., he 

concluded that he had no skeletal abnormalities and discovered nothing in 

K.B.’s medical history or lab work that would lead him to believe that K.B.’s 

bones were more susceptible to breaking or that he suffered from any kind of 

nutritional deficiency or metabolic disorder. See N.T. Dependency/Abuse 

Hearing, 11/8/19, at 28. According to the additional imaging done at CHOP, 

Dr. Brennan was able to discern, to a reasonable degree of medical certainty, 

that there were no signs of healing in either of K.B.’s two fractures, which 

suggested that the fractures were fresh and had occurred sometime within 7-

10 days prior7to the imaging. CHOP doctors determined that the injuries 

____________________________________________

7 K.B.’s Goddard School records revealed that he was asymptomatic on Friday, 

October 11th. N.T. Dependency/Abuse Hearing, 11/8/19, at 12. Thus, CPS 

narrowed the injury time frame to sometime after school on the 11th and the 

early morning of Monday the 14th. Id. 

 
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were caused by some sort of non-accidental trauma, and that the fractures 

were highly specific for an abusive or inflicted type of injury. 

Social workers from the Philadelphia Department of Human Services 

(DHS) spoke to the family at CHOP, after receiving a report alleging fivemonth-old K.B. had arrived at CHOP with unexplained injuries to his arm and 

shoulder. Mother and Father were both questioned by police about K.B.’s 

injuries; neither parent knew how he sustained the injuries. Parents also did 

not report anything negative about K.B.’s caregivers to DHS or authorities. 

Mother, Father, Babysitter #1, Babysitter #2, and Paternal Grandmother were 

initially listed as potential perpetrators of abuse on DHS’ child abuse report

(Report). DHS social worker Krista Gilmore, who investigated the Report,

determined that K.B. was likely injured between late Sunday night on the 13th

and Monday morning on the 14th “[b]ased on the interviews,[8] based on the 

medical evidence, and based on the fact that everyone said that [K.B.] was 

fine until Monday morning.” N.T. Dependency/Abuse Hearing, 12/16/19, at

86- 87. While Gilmore concluded that Father and Mother are well bonded with 

Children and are capable of meeting their needs and keeping them safe,

9 she 

____________________________________________

8 Gilmore testified that she interviewed Mother, Father, Babysitter #1, 

Babysitter #2, and Paternal Grandmother. 

9

In fact, there is no evidence on record that K.B. had any prior fractures or 

healed injuries to suspect that he had been abused in the past. Cf. In re 

A.H., 763 A.2d 873 (Pa. Super. 2000) (where child’s treating doctor found 

healed fracture of child’s left radius, which was inflicted approximately one to 

two months prior to current abuse examination, and fracture of upper 

humerus of left arm, which was inflicted within two to four weeks prior to 

exam).
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ultimately determined that the report was indicated with regard to Mother, 

Father and Paternal Grandmother. Specifically, Gilmore noted that these 

three individuals should be held responsible for K.B.’s injuries because “she 

could not place them outside of the location at the time frame . . . that [DHS] 

had.” Id. at 80, 120. 

Children were taken into protective custody on October 16, 2019. A 

shelter care hearing took place on October 17, 2019, after which Children were 

ordered to remain in DHS’ custody. At the time of the hearing, Y.C., C.B. and 

A.B. had been placed with Father’s mother. When K.B. was released from 

CHOP, he also remained in Father’s mother’s care. DHS filed dependency 

petitions on October 21, 2019, alleging Children were “dependent and/or 

abused pursuant to the Juvenile Act[, (Act)] 42 Pa.C.S. § 6302 (Dependent 

Child [who is without proper care or control]) and/or the Child Protective 

Services Law [(CPSL),] 23 Pa.C.S. § 6303(b[.]1) [(defining “Child abuse”)]. 

On November 6, 2019, the Child Advocate10 filed a motion for a finding of child 

abuse as to Mother and Father with regard to K.B. See 23 Pa.C.S. § 

6303(b.1). On November 8, 2019 and December 16, 2019, the court held a 

consolidated, two-day hearing on the dependency petitions and motion for 

____________________________________________

10 On October 16, 2019, the court appointed counsel and a guardian ad litem

for K.B. At the dependency/abuse hearings, child advocate, Sarah Henschke, 

Esquire, and her supervising attorney and co-counsel, Beth Kahn, Esquire, 

represented Children.
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finding of child abuse. At the hearings Dr. Brennan, Ms. Gilmore, Babysitter 

#2, Mother and Father testified.

On December 16, 2019, the court granted the motion for a finding of 

child abuse with regard to Mother and Father, and ordered Parents to complete 

parenting capacity evaluations and referred them to Family School. The court 

found that the testimony narrowed down the timeframe of when K.B. 

sustained his injuries to between Sunday (October 13th) evening to Monday 

(October 14th) morning. N.T. Dependency/Abuse Hearing, 12/16/19, at 181. 

Notably, the court pointed out that when Babysitter #2 returned home with

the other children around 7:30 p.m. on the 13th, she observed K.B. sleeping 

on his right side and “if he’s sleeping on his right side, he could not have been 

hurt at that time[.]” Id. Mother also testified that when she and Father 

returned home from New York City at 10 p.m. on the 13th, K.B. “was turned 

on his right side in his Boppy[11].” Id. at 46.

While the court ultimately concluded that neither Mother nor Father 

intentionally or knowingly abused K.B., it did find that a recklessness standard 

was met since parental duties also extend to protecting children from harm 

that others may inflict. On the same date, the trial court entered four orders 

of adjudication and disposition for each child. With regard to K.B. and A.B., 

the court found that clear and convincing evidence existed to declare them

____________________________________________

11 A “Boppy” is a horseshoe-shaped, ergonomic pillow that caretakers use for 

supporting and feeding infants and babies. See

https://www.boppy.com/pages/time-line.
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dependent and removed them from Parents’ home “based upon the findings 

of abuse, neglect or dependency[,]. . . that it is in the best interest of [] 

Child[ren] to be removed from the home, that to allow [] Child[ren] to remain 

in the home would be contrary to [] Child[ren]’s welfare, and that [DHS] made 

[r]easonable [e]fforts to prevent or eliminate the need for removal of [] 

Child[ren] from the home.” K.B. Order, 12/16/19, at 1-2; A.B. Order, 

12/16/19, at 1-2. K.B. and A.B. were placed in kinship care with Father’s 

mother, legal custody of K.B. and A.B. was transferred to DHS, and Parents 

were given twice weekly, line-of-sight and line-of-hearing visits at Father’s

mother’s home. The court also permitted visits to be “modified by agreement 

of the parties.” Id. at 2. The placement goal for both K.B. and A.B. remained 

“return to parent or guardian.” Id. Finally, parents were referred to “Family 

School” and a parenting capacity evaluation, were ordered to maintain contact 

with CUA and attend all of K.B.’s medical and dental appointments. Id.

With regard to C.B. and Y.C., the court found by clear and convincing 

evidence that they were “without proper care, or control, subsistence, [or] 

education as required by law, or other care necessary for [their] physical, 

mental, or emotional health, or morals.” C.B. Order, 12/16/19, at 1; Y.C. 

Order, 12/16/19, at 1. The court, however, determined that it would not be 

contrary to C.B.’s and Y.C.’s welfare to permit them to remain in the family 

home where “[C]hild[ren are] safe in the current placement setting.” Id. at 

1-2. Legal custody of C.B. and Y.C. remained with Parents. 
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Father filed three timely notices of appeal from the dependency orders 

and abuse order, as well as a court-ordered Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Mother filed four timely notices 

of appeal from the dependency orders and abuse order, as well as a courtordered Rule 1925(b) concise statement of errors complained of on appeal.12

 

On appeal, Father presents the following issues for our consideration:

(1) Whether the trial court erred as a matter of law and abused 

its discretion where it determined that [Father] was a 

perpetrator of child abuse against K.B.

(2) Whether the trial court erred as a matter of law where it 

determined that [Children] met the definition of dependent 

children.

(3) Whether the trial court erred as a matter of law and abused 

its discretion when it ordered that it was clearly necessary 

to remove K.B. and A.B. from their parents’ care.

Father’s Brief, at 3. Mother presents the following issues on appeal:

(1) Whether the trial court erred as a matter of law and abused 

its discretion where it determined that [Mother] was a 

perpetrator of child abuse against K.B.

(2) Whether the trial court erred as a matter of law where it 

determined that [Children] met the definition of dependent 

children.

____________________________________________

12 On January 5, 2020, three days after they filed their notices of appeal, 

Mother and Father each filed motions for reconsideration of the court’s 

dependency orders and abuse order. However, it appears that the court did 

not rule on the motions. See Cheatem v. Temple Univ. Hosp., 743 A.2d 

518, 520 (Pa. Super. 1999) (filing of motion for reconsideration does not toll 

thirty-day appeal period, unless trial court enters order expressly granting 

reconsideration within thirty days of entry of appealable order).
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(3) Whether the trial court erred as a matter of law and abused 

its discretion when it ordered that it was clearly necessary 

to remove K.B. and A.B. from their parents’ care.

Mother’s Brief, at 3.

Father’s and Mother’s first issues allege that the trial court committed 

error when it determined that they were perpetrators of abuse with regard to 

K.B. Specifically, they contend that their conduct did not meet the legal 

standard for a perpetrator by omission, that there is no evidence of record to 

support the conclusions that their conduct was reckless, and that applying the 

presumption under section 6381(d) of the CPSL was in error.13 Father’s Brief, 

at 19; Mother’s Brief, at 19. 

In In the Interest of N.B.-A., 224 A.3d 661 (Pa. 2020), the 

Pennsylvania Supreme Court recently reiterated the appropriate standard of 

proof for a finding of child abuse:

____________________________________________

13 To the extent that Father and Mother argue that Appellee waived application 

of a section 6318(d) presumption because it did not cite to the statute in its 

motion for finding of child abuse, we disagree. First, we note that Father and 

Mother failed to raise this specific issue of waiver in their Rule 1925(b) 

statements of errors complained of on appeal. See Pa.R.A.P. 1925(b)(4)(vii).

Second, both counsel for Father and counsel for Mother discussed the 

presumption and the right to present rebuttal evidence at the 

dependency/abuse hearings. N.T. Dependency/Abuse Hearing, 12/16/19, at 

52, 161-62. Thus, the argument is waived. However, even if they had not 

waived the issue, we note that there is no statutory requirement that the 

presumption be pled in a motion or petition. The presumption is found in a 

miscellaneous provision under the CPSL that sets forth additional rules of 

evidence (here, a prima facie evidence of abuse) that govern in child abuse 

proceedings in court or in any department administrative hearing. See 23 

Pa.C.S. § 6381; see also infra at 15.
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The requisite standard of proof for a finding of child abuse 

pursuant to [s]ection 6303(b.1) of the CPSL is clear and 

convincing evidence. [A] petitioning party must demonstrate the 

existence of child abuse by the clear and convincing evidence 

standard applicable to most dependency determinations, 42 

Pa.C.S. § 6341(c)[]. Clear and convincing evidence is “evidence 

that is so clear, direct, weighty, and convincing as to enable the 

trier of fact to come to a clear conviction, without hesitancy, of 

the truth of the precise facts in issue.” [] However, in certain 

situations, the identity of the abuser need only be 

established through prima facie[14] evidence. As an appellate 

court, we are required to accept the findings of fact and credibility

determinations of the trial court, if they are supported by the 

record; however, th[is] [C]ourt is not bound by the lower court’s 

inferences or conclusions of law.

Id. at 668 (citations omitted) (emphasis added). An individual may be held 

responsible for child abuse by either acts or omission. In re: L.V., 127 A.3d 

831, 838 (Pa. Super. 2015).

Instantly, the trial court deemed Father and Mother perpetrators of child 

abuse, as defined in section 6303(b.1)(1)15 of the CPSL. The court further 

____________________________________________

14 Prima facie evidence is “[s]uch evidence as, in the judgment of the law, is 

sufficient to establish a given fact, or the group or chain of facts constituting 

the party’s claim or defense, and which if not rebutted or contradicted, will 

remain sufficient.” In the Interest of L.Z., 111 A.3d 1164, 1184 (Pa. 2015), 

citing Black’s Law Dictionary 825 (6th ed. abridged 1991).

15 The relevant portion of section 6303(b.1) states: “The term ‘child abuse’ 

shall mean intentionally, knowingly or recklessly . . . [c]ausing bodily injury 

to a child through any recent act or failure to act.” 23 Pa.C.S. § 6301(b.1) 

(1) (emphasis added). Bodily injury is defined under the CPSL as 

“[i]mpairment or physical condition or substantial pain.” 23 Pa.C.S. § 

6303(a). Moreover, for purposes of the CPSL, “A person acts recklessly with 

respect to a material element of an offense when he consciously disregards a 

substantial and unjustifiable risk that the material element exists or will result 

from his conduct.” 18 Pa.C.S. § 302(b); see 23 Pa.C.S. § 6303 (definition of 

“recklessly” has same meaning as that set forth in section 302(b) of Crimes 

Code).
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found that “the record established prima facie evidence that [Parents were 

two] of the perpetrators of child abuse as to [K.B.] under 23 Pa.C.S.[] § 

6381(d), since [Parents were two] of the three primary caregivers for [K.B.] 

during the period when [K.B.] could have been injured.” Trial Court Opinion, 

3/3/20, at 12. 

“The purpose of the CPSL is to bring about quick and effective reporting 

of suspected child abuse so as to serve as a means for providing protective 

services competently and to prevent further abuse of the children while 

providing rehabilitative services for them and the parents.” In the Interest 

of J.R.W., 631 A.2d 1019, 1021 (Pa. Super. 1993), citing 23 Pa.C.S. § 

6302(b). The CPSL “was created primarily for reporting suspected child 

abuse, providing the means for doing so and establishing the persons 

responsible for reporting the abuse[.]” Id. See also 23 Pa.C.S. §§ 6311-

6319

Section 6381(d) of the CPSL, found under the subchapter titled 

“Miscellaneous Provisions,” establishes a rebuttable, evidentiary 

presumption when a child incurs abuse not ordinarily suffered absent acts or

omissions of a parent or other responsible party. Under such circumstances, 

“the fact of abuse suffices to establish prima facie evidence of abuse by the 

parent or person responsible.” 23 Pa.C.S. § 6381(d) (“Evidence in court 
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proceedings”).

16

 “Subsection (d) [of section 6381] provides for an attenuated 

standard of making a legal determination as to the abuser in child abuse 

cases.” In the Interest of J.R.W., 631 A.2d at 1023. To aid the Juvenile 

Court in determining whether a child has been abused, “the Legislature 

deemed it wise and necessary to establish a different evidentiary standard for 

finding child abuse by a parent or person responsible for the child’s care, one 

in contrast to the overall standard for determining dependency under the Act.” 

Id. The J.R.W. Court recognized:

This lessened standard of establishing abuse by the caretakers 

[under section 6381(d)], coupled with the clear and convincing 

evidence necessary to find dependency, has been imposed by the 

Legislature as the standard which the Juvenile Court must apply 

in deciding abuse cases. Prima facie evidence is not the standard 

that establishes the child has been abused, which must be 

established by clear and convincing evidence; it is the standard 

by which the court determines whom the abuser would be in a 

given case. There is no conflict, constitutional or otherwise, with 

the clear and convincing evidence standard imposed by the Act to 

establish child abuse. The Legislature has determined that the 

likelihood clearly established abuse has occurred, other than at 

the hands of the custodian, is so small that prima facie evidence 

the custodian has caused the injury, either by acts or omissions, 

____________________________________________

16 Section 6381(d) provides:

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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is all that is required. We find no defect in this reasoning. Such 

a standard provides maximum protection for the child victim or 

other children in the community who might be subject to similar 

abuse if the alleged abuser was not identified and permitted free 

access to the victim or other vulnerable children. It is not 

equivalent to a finding of guilt in a criminal proceeding which could 

result in deprivation of freedom. Thus the [L]egislature has 

balanced the needs of society and children for protection against 

the abuser’s possible patterned behavior and his/her right to 

freedom unless found guilty beyond a reasonable doubt.17

____________________________________________

17 Once the Juvenile Court has made a determination that child abuse has 

occurred, by clear and convincing evidence, a “founded report” may be lodged 

with the Department of Public Welfare [DPW] determining that the parents 

are the persons responsible for the abuse.” J.R.W., supra at 1025. Under 

the CPSL, “[t]he perpetrator of the abuse is notified of the report and his/her 

right, within 45 days, to seek expungement of the report[.]” G.V. v. Dep’t 

of Pub. Welfare, 52A.3d 434, 447-47 (Pa. Commw. 2012), citing 23 Pa.C.S. 

§§ 6338(a), 6341(a); 55 Pa. Code §§ 3490.40, 3490.45, 3490.105a(a). 

Specifically, under section 6341(a)(1), “[a]t any time, the secretary may 

amend or expunge any record in the Statewide database . . . upon good cause 

shown and notice[.]” 23 Pa. C.S. § 6341(a)(1) (emphasis added). “Good 

cause shall include, but is not limited to, the following: (i) Newly discovered 

evidence that an indicated report . . . is inaccurate or is being maintained in 

a manner inconsistent with this chapter[;] or (ii) A determination that the 

perpetrator in an indicated report of abuse no longer represents a risk of child 

abuse and that no significant public purpose would be served by the continued 

listing of the person as a perpetrator in the Statewide database.” Id. at § 

6341(a)(1)(i), (ii) (emphasis added). In cases where a report is not expunged 

and the adult perpetrator’s Social Security number and date of birth are not 

known, the indicated reports must be expunged when the child is 23 years of 

age. 23 Pa.C.S. § 6338(b); 55 Pa.Code § 3490.39(a). If the adult 

perpetrator’s Social Security number and date of birth are known, certain 

information on the perpetrator is indefinitely maintained in a sub-file in the 

ChildLine Registry. G.V., supra, at 447. Finally, “[a]fter a hearing and a 

determination that a claim of abuse has a substantial basis, the [DPW] shares 

the information only with persons and agencies performing investigative and 

child protective functions, a child’s examining or treating physician, a guardian 

ad litem, a court, federal auditors, and a prospective adoptive parent.” See 

R. v. Dep’t of Pub. Welfare, 636 A.2d 142, 151 (Pa. 1994); see also 23 

Pa.C.S. § 6340 (Release of information in confidential reports). 
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Id. at 1024 (emphasis added). See L.Z., 111 A.3d at 1184 (“The Legislature, 

however, carved out a very limited exception to these more stringent 

evidentiary standards, allowing for the possibility of identifying the perpetrator 

of abuse based on prima facie evidence in cases where the abuse is “of such 

a nature as would ordinarily not be sustained or exist except by reason of the 

acts or omissions of the parent[.]”).

Under section 6381(d), a parent or other responsible caregiver may 

rebut the prima facie presumption with evidence:

[d]emonstrating that the parent or responsible person did not 

inflict the abuse, potentially by testifying that they gave 

responsibility for the child to another person about whom they had 

no reason to fear or perhaps that the injuries were accidental 

rather than abusive. The evaluation of the validity of the 

presumption would then rest with the trial court evaluating the 

credibility of the prima facie evidence presented by . . . [DHS] . . 

. and the rebuttal of the parent or responsible person.

L.Z., 111 A.3d at 1185. See id. at 1176 n.15 (section 6381(d) presumption 

may be rebutted with evidence that parent or responsible person was absent 

at time of injury and not otherwise responsible for injury by failing to secure 

proper care for child). A parent does not actually have to be physically present 

with the child at the time of the abuse for the presumption to apply to the 

child’s parent. Id. at 1185-86.

In N.B.-A., the Supreme Court reversed our en banc Court’s holding,

which had applied the section 6381(d) presumption and found that a mother 

had committed child abuse by omission. There, a mother took her six-yearold daughter to the emergency department at CHOP reporting that she had 
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been experiencing vaginal discharge for three days. Mother indicated she had 

no concerns that child may have been sexually abused. Mother told CHOP 

staff that she and child lived with child’s maternal grandmother and that no 

males lived with them. After a physical examination, child was discharged 

from CHOP, with instructions to take baths and maintain good hygiene. The 

results of lab tests later revealed that child was suffering from a sexuallytransmitted disease; mother was asked to return to CHOP with child for 

additional testing. Mother consistently denied that any males lived in the 

home with her and child; however, child told CPS caseworkers that three 

males lived with them, a stepfather and two of mother’s stepsons. Mother 

and one stepson later tested positive for the same sexually-transmitted 

disease that child had. DHS obtained an order for protective custody. Child 

was placed in foster care. Child was adjudicated dependent. One month later, 

stepbrother was identified as the perpetrator of sexual abuse against child. 

The trial judge, the Honorable Lyris F. Younge, did not find mother 

credible and ultimately entered an order finding that she was a perpetrator of 

sexual abuse under section 6303(b.1), concluded that aggravated 

circumstances existed pursuant to section 6302(2), and found that DHS was 

not required to continue to make reasonable efforts at reunification. 224 A.3d 

at 665-66. On appeal, our Court reversed the finding of aggravated 

circumstances, but affirmed the juvenile court’s finding that mother was a 

perpetrator of child abuse under sections 6303(b.1) and 6381(d) of the CPSL. 
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In reaching its decision to reverse this Court, the Supreme Court concluded

that:

[T]he Superior Court . . . err[ed] in applying the [s]ection 6381(d) 

presumption . . . [where] there was no evidence presented in 

th[e] case that [m]other perpetrated the abuse . . . [and] 

there was no evidence presented that [m]other knew or 

should have known that [c]hild was being abused, sexually 

or otherwise, as [the examining doctor] testified that

[c]hild did not present any physical signs of injury or abuse 

when she initially examined her, and such testimony was 

consistent with the medical records from CHOP, which 

indicated that [c]hild did not have any signs of physical injury or 

abuse, aside from the vaginal discharge reported by [m]other.

* * *

Accordingly, we hold that the [s]ection 6381(d) presumption is 

not applicable where there is no evidence that the parent or other 

person responsible for the welfare of the child knew or should have 

known of the abuse or risk of abuse and disregarded it. As DHS 

failed to offer any evidence that [c]hild’s abuse was of such 

a nature as would ordinarily not be sustained or exist 

except by reason of the acts of omissions of the parent or 

other person responsible for the welfare of the child, the 

Superior Court erred in applying the [s]ection 6381(d) 

presumption.

Id. at 674, 675 (emphasis added). Moreover, there was no evidence that 

child ever reported being sexually abused; in fact, child continually denied 

that she had been sexually abused. Finally, because DHS presented no 

evidence that mother knew or should have known that stepson posed a risk 

to child, but ignored that risk, the Court concluded “we cannot find that the 

abuse in this case was of a type that would ordinarily not occur except for the 

acts or omissions of the child’s caretaker.” Id. at 675.
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The instant case is sufficiently distinguishable from the facts of N.B.-A. 

Unlike the mother in N.B.-A., Mother and Father were both aware that K.B. 

had been injured before they took him to Virtua. Also unlike the child in N.B.-

A., here K.B. was an infant when the abuse occurred, and, thus, incapable of 

describing that abuse. The most notable distinction, however, is Dr. Brennan’s 

determination that K.B.’s fractures were non-accidental and “most likely the 

result of inflicted trauma.” N.T. 11/8/19, at 24. In his medical opinion, K.B.’s 

injuries were inflicted intentionally and caused by force being applied to his 

arm in a “yanking-type” motion; injuries that would have caused him 

substantial or severe pain. Id., at 31-32.

In L.Z., supra, the Pennsylvania Supreme Court provided additional 

guidance on applying the section 6381(d) presumption — specifically, in cases 

that involve multiple caregivers responsible for the care and protection of an 

abused child when the evidence fails to demonstrate definitively which 

individual inflicted the abuse. In L.Z., the Court reviewed whether our Court 

erred in not applying the presumption in such cases “where the record fails to 

establish that the child was in the parent’s care at the time of the injury.” Id.

at 1176, citing In the Interest of L.Z., 91 A.3d 208, 216 (Pa. Super. 2014). 

The child in L.Z., who was 21-months-old, was brought to the hospital by his 

mother and maternal aunt18 to be treated for a deep cut that extended nearly 

____________________________________________

18 Maternal aunt and mother lived together and were both child’s primary 

caregivers.
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halfway around the base of his penis. Hospital doctors also observed a dark 

bruise around the buckle area (above the jawbone and below the cheekbone) 

on both of child’s cheekbones. The bruises were somewhere between a day 

and a week old at the time child arrived at the hospital. Child also suffered 

from severe diaper rash and a yeast infection. 

Child’s injuries were determined to be consistent with abuse and 

inconsistent with several explanations given by mother and aunt. Aunt 

claimed that child caused his own injuries by tugging on his penis during a 

diaper change. Mother, who acknowledged at the hospital that she and aunt 

were child’s primary caretakers, claimed that she had been visiting a 

paramour for the two days prior to the hospital visit and had not seen child 

since that time. Concluding that the child’s injuries were non-accidental, 

hospital staff filed a report with DHS. A report was also prepared by CPS; 

aunt was indicated as a perpetrator of abuse in the CPS report.19 Child was 

placed in protective custody. DHS filed dependency and aggravated 

circumstances petitions. 

At an adjudicatory hearing, a doctor testified that child’s cheek bruises

were “common abuse injur[ies;]” a medical director of the hospital’s pediatric 

inpatient unit, who also examined child, opined that child was abused. Id. at 

1167. Following the hearing, the trial court entered an order adjudicating 

____________________________________________

19 The mother was not indicated as a perpetrator of abuse either by 

commission or omission in the CPS report. However, a general protective 

service’s report was substantiated against mother for lack of supervision and 

for child suffering from a yeast infection.
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child dependent, found it was in his best interest to be removed from mother’s 

home, and, significantly, found that child was a victim of abuse under section 

6303 and that mother was the perpetrator of such abuse. Finally, the court 

concluded that aggravating circumstances existed and, therefore, that DHS 

did not need to make further efforts to reunify child with mother. 

In her Rule 1925(a) opinion, the trial judge stated that she found clear 

and convincing evidence established that child was without parental care and 

that child’s injuries would not have occurred “but for [m]other’s omissions as 

his primary caretaker.” Id. at 1169. On appeal, mother claimed that the 

court erred in finding that she was responsible for child abuse; our Court 

affirmed the dependency adjudication, but vacated the court’s determination 

that mother was the perpetrator of the abuse. Our Court granted the guardian 

ad litem’s petition for reargument en banc and, consistent with our panel 

decision, affirmed the dependency adjudication and vacated the perpetrator 

of abuse determination. Notably, in reaffirming the panel’s decision to vacate

the finding that mother was the perpetrator of child’s abuse, the en banc panel 

held that section 6381(d) does not permit a court to designate a parent as a 

perpetrator of abuse “where the record fails to establish that the child was in 

the parent’s care at the time of the injury.” L.Z., 91 A.3d at 216.

In reversing our Court, the Supreme Court came to the following 

conclusions regarding section 6381(d)’s rebuttable presumption: (1) there is 

no requirement that a parent be physically present at the time of the injury;

and (2) the inclusion of the word “omissions” in section 6381(d), encompasses 
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situations where the parent or responsible person is not present at the time 

of the injury but is, nonetheless, responsible due to his or her failure to provide 

protection for the child. L.Z., 111 A.3d at 1184. In so holding, the Court 

recognized those cases, like the present, often involve “multiple caregivers . . 

. that circle the wagons,” and “children [that] may be too young . . . to 

describe the abuse,” and, thus, “CYS agencies are left to prove [these] case[s]

with only the physical evidence of injuries that would not ordinarily be 

sustained but for the action of the parents or responsible persons and the 

implausible statements of the parents or responsible persons.” Id. at 1185.

Here, the medical evidence presented by DHS demonstrated that like 

child’s injures in L.Z., K.B.’s injuries were neither accidental nor self-inflicted 

and were of such a nature that they would not ordinarily be sustained except 

by reason of the acts or omissions of the parent or other person responsible 

for K.B.’s welfare. The trial court reasonably concluded, based upon testimony 

from caseworker Gilmore, that K.B.’s injuries occurred sometime after 

Babysitter #1, K.B.’s sitter, left for the evening on the 13th and when he awoke 

on the 14th. In addition, the trial judge concluded, based on medical 

testimony, that because K.B.’s injuries were so substantial and would have 

caused him considerable pain, K.B. had not yet sustained his injuries when he 

was sleeping on his side when Parents returned home at 10 p.m. on the 13th. 

See In the Interest of R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (the Court 

required to defer to trial court’s credibility findings if they are supported by 

evidence of record). Accordingly, we concur with the trial judge that the 
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section 6381(d) prima facie presumption of abuse was established with regard 

to Mother and Father. See In re S.L., 202 A.3d 723, 729-30 (Pa. Super. 

2019) (section 6381(d) presumption properly applied to mother where: child 

suffered non-accidental injuries; mother among adults responsible for child 

when injuries occurred; and mother denied knowing how child injured); see 

also In re J.R.W., supra at 1023 (presumption protects those innocent 

victims of abuse who are “too young . . . to describe their abuse” and 

necessary in cases where “agencies [are left] . . . to prove their case with only 

physical evidence of injuries that would not ordinarily be sustained but for the 

action of the parents or responsible persons.”). 

Moreover, Mother and Father failed to rebut the presumption by 

presenting evidence or testimony from themselves, Paternal Grandmother, or 

either babysitter establishing that K.B. was not in their care when he suffered 

his injuries, and that they had no reason to question their decision to leave 

child in babysitters’ and Paternal Grandmother’s care.20 Under these 

circumstances, we conclude that the trial court properly found that Mother and 

Father were perpetrators of abuse under section 6381(d).21 The presumption 

____________________________________________

20 Parents did not note any concerns in medical records about their childcare 

providers to CHOP medical staff. See N.T. Dependency/Abuse Hearing, 

11/8/19, at 27. 

21 We believe the trial judge did an exemplary job in what was, no doubt, a 

very difficult case. The trial judge noted that his conclusion that the section 

6381(d) presumption applied in the matter “doesn’t mean that [K.B.’s] 

parents are bad parents either. It just means that somehow the child got hurt 
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is the only means that a court has to ensure that a child (here, an infant) will 

remain safe when, under their parents’ care, they have been abused and the 

identity of the perpetrator is not able to be established. In essence, it forces 

caregivers either to come forward with the identity of the perpetrator of abuse 

or be assigned fault where it was their responsibility to care for the child and 

keep him or her safe. As emphasized by our Supreme Court in L.Z., “when a 

child is in the care of multiple parents or other persons responsible for care, 

those individuals are accountable for the care and protection of the child 

whether they actually inflicted the injury or failed in their duty to protect the 

child.” L.Z., 111 A.3d at 1185.22 

____________________________________________

in such a way that nobody can explain [it].” N.T. Dependency/Abuse Hearing, 

12/16/19, at 179. He applied the presumption appropriately, made sure that 

the family goal remained reunification, ordered that Mother and Father’s older 

children remain in their care and custody, and ensured that Mother and Father 

would attend appropriate parenting classes and receive necessary 

evaluations, while permitting the twins to remain in kinship care with Paternal 

Grandmother who supervised twice-weekly visits with Parents. In short, the 

judge made it very clear that he wanted this family to be able to get through 

this ordeal and reunite as a family unit. See 23 Pa.C.S. § 6302(b) (one of 

many purposes of CPSL is to “stabilize and protect the integrity of family life 

where ever appropriate”).

22 Contrary to the dissent that would conclude Mother and Father sufficiently 

rebutted the section 6381(d) presumption, we do not find the evidence 

sufficiently proved that Parents relinquished all control of parental duties with 

regard to K.B. to Paternal Grandmother at the time Child sustained his nonaccidental injuries. In such cases, “[t]he evaluation of the validity of the 

presumption . . . rest[s] with the trial court evaluating the credibility of the 

prima facie evidence presented by the CYS agency and the rebuttal of the 

parent or responsible person.” L.Z., 111 A.3d at 1185. Simply put, we do 

not find that Parents’ countervailing rebuttal evidence was “substantial” 

enough to reverse the trial court’s determination. Id. at 1180 (section 
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Father’s and Mother’s next issues concern the trial court’s adjudication

of Children as dependent.23 Specifically, they contend that because they are 

not responsible for K.B.’s injuries, the trial court’s dependency determination 

is erroneous. Having already determined that Father and Mother were both 

properly found to be perpetrators of abuse to K.B., this issue is moot. See In

re R.P., 957 A.2d 1205, 1213 (Pa. Super. 2008) (stating where trial court

finds one sibling dependent due to abuse, court may determine other siblings

also dependent, even if they have not been abused).

Finally, Father and Mother argue that the trial court erred in determining 

that it was clearly necessary to remove K.B. and A.B. from their care where 

that determination “was made based on the abuse to K.B.” and where 

“[n]either Mother nor Father are responsible for this injury.” Father’s Brief, 

at 19; Mother’s Brief, at 19. Again, as we have affirmed the court’s finding of 

____________________________________________

6381(d) presumption “can be rebutted, like other statutory presumptions, 

with countervailing competent, substantial evidence.”) (emphasis added). 

See also In re S.G., 922 A.2d 943, 947 (Pa. Super. 2007) (trial court, not 

appellate court, is charged with responsibilities of evaluating credibility of 

witnesses and resolving any conflicts in testimony; when trial court's findings 

are supported by competent evidence of record, we will affirm even if record 

could also support opposite result). 

23 Our scope of review in child dependency cases “is limited in a fundamental 

manner by our inability to nullify the fact-finding of the lower court.” In re 

Read, 693 A.2d 607, 610 (Pa. Super. 1997). We accord great weight to the 

hearing judge’s findings of fact because he is in the best position to observe 

and rule upon the credibility of the witnesses. Id. “Relying on this unique 

posture, we will not overrule the findings of the trial court if they are supported 

by competent evidence.” Id.
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abuse perpetrated by Father and Mother with regard to K.B., this issue is 

moot.

Orders affirmed.

Judge King joins this Memorandum.

Judge Strassburger files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/2/2020