J-S28001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.V., A MINOR

APPEAL OF: A.D., NATURAL MOTHER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 309 MDA 2020

Appeal from the Dispositional Order Entered January 15, 2020

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

No(s): CP-41-DP-0000001-2020

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED AUGUST 14, 2020

A.D. (“Mother”) appeals the order of adjudication and disposition

entered on January 15, 2020, which finds, inter alia, that she perpetrated child 

abuse against her infant son, J.V.1 We affirm.

J.V. was born in October 2019. The juvenile court summarized the 

procedural and factual history that began approximately two months later:

On the morning of December 4, 2019, at approximately 

7:52 a.m., Mother contacted 911 and reported that [J.V.] was 

unresponsive. [J.V.] was first rushed to Jersey Shore Hospital, 

and then taken to Geisinger Medical Center by life flight and there 

admitted to the pediatric intensive care unit (“PICU”). [J.V.]’s 

treating physician made initial findings of retinal hemorrhage and 

brain swelling [rib fractures] and expressed concern that the 

injuries appeared to result from non-accidental trauma. Mother 

and [Father] were subject to questioning by both police and a 

Lycoming County Child and Youth Services (“CYS”) caseworker on 

the evening of December 4. Thereafter, on January 2, 2020, [J.V.]

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1 The juvenile court also found that T.V., the father of J.V., perpetrated child 

abuse. N.T., 1/15/20, at 47-48. Father did not appeal. 
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was transferred from the PICU to the children’s unit, where his 

supervision by medical staff decreased, allowing his parents to 

regain direct care and access.

On January 3, 2020, . . . CYS commenced the instant action 

by filing . . . a petition seeking that [J.V.] be placed in protective 

custody at Geisinger Medical Center, as the parents were subject 

to ongoing criminal and Child Protective Services (“CPS”) 

investigations. On the same date, the court granted an order for 

emergency protective custody, pending a full hearing. Following 

an evidentiary hearing held January 6, 2020, the court issued a 

recommendation for shelter care, finding it in the interest of the 

welfare of the child. The court granted CYS legal and physical 

custody of [J.V.], with contact by the parents limited to supervised 

visits.

A dependency hearing was thereafter held on January 15, 

2020, at which the court considered CYS’s dependency petition 

alleging that [J.V.] was a victim of child abuse as defined at 23 

Pa.C.S. § 6303, and CYS’s motion for finding of aggravated 

circumstances. Following the dependency hearing, at which both 

parents were present and represented by counsel, the court 

issued an order of adjudication and disposition entering a finding 

of abuse and holding that [J.V.] was a dependent child. The court 

additionally made an aggravated circumstances finding under 42 

Pa.C.S. § 6302, determining that [J.V.] had been a victim of 

physical abuse resulting in serious bodily injury, sexual violence, 

and/or aggravated neglect perpetrated by both parents.

Juvenile Court Opinion, 3/10/20, at 2-3 (footnotes and unnecessary 

capitalization omitted).

On February 14, 2020, Mother filed a timely notice of appeal from the 

adjudication and disposition and a concise statement of errors complained of 
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on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).2 She presents three 

issues for our review:

1. Whether the [juvenile] court erred in making a finding of abuse 

as defined at 23 Pa.C.S. § 6303 against [Mother] as there is no 

evidence Mother harmed the child[?]

2. Whether the [juvenile] court erred in making a finding of abuse 

as defined at 23 Pa.C.S. § 6303 against [Mother] as there was no 

evidence [Mother] observed or was aware of any harm being done 

to the child[?]

3. Whether the [juvenile] court erred in granting the Agency’s 

motion for a finding of aggravated circumstances as it pertains to 

[Mother] as there is no evidence [Mother] abused the child[?]

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2 Although Mother conflates the two orders in the argument section of her 

brief, Mother did not appeal the finding of aggravated circumstances, which is 

a collateral order appealable as of right. See In re R.C., 945 A.2d 182, 184 

(Pa.Super. 2008). Thus, that order is not before us. See e.g., Interest of 

M.H., 1286 EDA 2019, 2019 WL 6716291, at *2 (Pa.Super. 2019) (observing, 

“Mother did not appeal the aggravated circumstances order, but timely filed 

the instant appeal regarding the adjudication and dispositional 

order.”); Pa.R.A.P. 126(b)(2) (“Non-precedential decisions [filed after May 1, 

2019] may be cited for their persuasive value”). 

To the extent that we would confront the merits of the order finding 

aggravated circumstances against Mother, we would affirm it for the reasons 

cogently explained by the juvenile court, 

The [c]ourt may find aggravated circumstances when “the child or 

another child of the parent has been the victim of physical abuse 

resulting in serious bodily injury, sexual violence or aggravated 

physical neglect by the parent.” The severity of [J.V.]’s injury and 

the likelihood that those injuries will be permanent justified a 

finding of physical abuse resulting in serious bodily injury and the 

entry of the Aggravated Circumstances Order. 

Juvenile Court Opinion, 3/10/20, at 7 (footnotes omitted).
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Mother’s brief at 7.3

We review the juvenile court’s determination of abuse for an abuse of 

discretion. In the Interest of J.M., 166 A.3d 408 (Pa.Super. 2017). As the 

alleged abuse occurred in December 2019, the current version of the Child 

Protective Service Law (“CPSL”), which became effective on June 12, 2018, 

controls our review. The statute defines child abuse, in relevant part, as 

follows:

(b.1) Child abuse.--The term “child abuse” shall mean 

intentionally, knowingly or recklessly[4] doing any of the following: 

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3 J.V.’s guardian ad litem, Angela Lovecchio, Esquire, mailed a letter to this 

Court stating that she did not intend to file a brief.

4 The CPSL refers to 18 Pa.C.S. § 302 with respect to the definitions of 

intentionally, knowingly, and recklessly. 18 Pa.C.S. § 302(b) provides as 

follows: 

(1) A person acts intentionally with respect to a material element 

of an offense when:

(i) if the element involves the nature of his conduct or 

a result thereof, it is his conscious object to engage in 

conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant 

circumstances, he is aware of the existence of such 

circumstances or he believes or hopes that they exist.

(2) A person acts knowingly with respect to a material element 

of an offense when:

(i) if the element involves the nature of his conduct or 

the attendant circumstances, he is aware that his 

conduct is of that nature or that such circumstances 

exist; and
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(1) Causing bodily injury to a child through any recent 

act or failure to act.

. . . .

(8) Engaging in any of the following recent acts:

. . . .

(iii) Forcefully shaking a child under one year of age.

. . . .

23 Pa.C.S. § 6303(b.1) (footnote omitted). Bodily injury is defined as 

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

§ 6303(a). 

In In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.Super. 1993), 

we explained that, pursuant to the doctrine of incorporation, the Juvenile Act’s 

definition of dependent child subsumed the definition of child abuse outlined 

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(ii) if the element involves a result of his conduct, he 

is aware that it is practically certain that his conduct 

will cause such a result.

(3) 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. The risk must be of such a nature and degree 

that, considering the nature and intent of the actor’s conduct and 

the circumstances known to him, its disregard involves a gross 

deviation from the standard of conduct that a reasonable person 

would observe in the actor’s situation.

18 Pa.C.S. § 302(b).
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in the CPSL. Thus, we stated the two laws “must be applied together in the 

resolution of child abuse complaints.” Id. at 1023. We reasoned,

The Legislature intended a detailed and specific definition of abuse 

to leave no doubt as to the capacity of the trial court, which in this 

case can only be the Juvenile Court, to make a finding and 

determination that a child has been abused. In its capacity as a 

trial judge, the Juvenile Court judge will look and must look to the 

above definition of child abuse in a case referred by the child 

protective service agency to the Court under petition for review of 

dependency when child abuse has been alleged.

Id.

In addition to establishing the pertinent definition of child abuse, the 

court in J.R.W. also stressed that the juvenile court’s determination of 

whether child abuse occurred must be supported by clear and convincing 

evidence. Id. 

[T]he clear and convincing evidence necessary to find 

dependency, [sic] has been imposed by the Legislature as the 

standard which the Juvenile Court must apply in deciding abuse 

cases. . . . There is no conflict, constitutional or otherwise, with 

the clear and convincing evidence standard imposed by the Act to 

establish child abuse. 

Id.; see also In re L.Z., supra at 1174.

Moreover, 23 Pa.C.S. § 6381 provides, in part: 

(d) Prima facie evidence of abuse.--Evidence that a child has 

suffered child abuse of such a nature as would ordinarily not be 

sustained or exist except by reason of the acts or omissions of the 

parent or other person responsible for the welfare of the child shall 

be prima facie evidence of child abuse by the parent or other 

person responsible for the welfare of the child.

23 Pa.C.S. § 6381.
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Mother argues that the juvenile court erred finding Mother a perpetrator 

of abuse because CYS did not present evidence that she abused J.V., or that 

she observed or was aware of any abuse of J.V. Mother’s brief at 16-18. 

Mother asserts that the juvenile court’s determinations as to abuse were 

incorrectly based on both Mother and Father caring for J.V. at the relevant 

time, neither admitting responsibility for J.V.’s injuries, the extremely small 

nature of Mother’s and Father’s residence, and Father yelling to rouse J.V. Id.

at 16. Mother instead maintains that she stated that she was sleeping and 

that Father stated that he was caring for J.V. at the relevant time. Id. at 16. 

Mother continues with her argument suggesting that Father further stated that 

he shook J.V. in an effort to wake him and that there is no evidence that she 

was aware of these actions. Id. at 16-17. Distinguishing the instant matter 

from In re L.V., 209 A.3d 399 (Pa.Super. 2019), where the mother noticed 

physical injury to the child and awaited an upcoming medical appointment, 

Mother states, “The testimony appears to point to someone else having caused 

the injuries other than [Mother] and there is no testimony which shows she 

caused or knew of the injuries and then failed to provide medical care.” Id. 

at 17. 

In finding J.V. was the victim of child abuse, the juvenile court reasoned:

The [CPSL] defines “child abuse,” in relevant part, as 

follows: “Causing bodily injury to a child through any recent act 

or failure to act. . . . Forcefully shaking a child under one year of 

age.” While the existence of child abuse must be proven by clear 

and convincing evidence, in certain circumstances the identity of 

the abuser may be established by prima facie evidence:
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[E]vidence that a child suffered injury that would not 

ordinarily be sustained but for the acts or omissions 

of the parent or responsible person is sufficient to 

establish that the parent or responsible person 

perpetrated that abuse unless the parent or 

responsible person rebuts the presumption. The 

parent or responsible person may present evidence 

demonstrating that they did not inflict the abuse, 

potentially by testifying that they gave responsibility 

for the child to another person about whom they had 

no reason to fear or perhaps that the injuries were 

accidental rather than abusive. The evaluation of the 

validity of the presumption would then rest with the 

trial court evaluating the credibility of the prima facie 

evidence presented by the CYS agency and the 

rebuttal of the parent or responsible person.

[In re L.V., 127 A.3d 831, 837-38 (Pa.Super. 2015)] 

This presumption is specifically applicable when multiple 

potentially responsible caregivers are involved, as those 

caregivers will often “circle the wagons” or alternatively point 

fingers at each other. Due to the pendency of criminal charges, 

both parents declined to testify at the Dependency Hearing, and 

consequently offered no evidence rebutting this presumption.

Therefore, the [c]ourt found that [J.V.] had suffered abuse 

at the hands of Mother, because [J.V.] suffered injuries while in 

the care of Mother and Father, and because [J.V.]’s injuries would 

not have occurred except for the acts or omissions of Mother and 

Father. Dr. Bruno’s testimony regarding the likely cause of [J.V.]’s 

constellation of injuries established by clear and convincing 

evidence that [J.V.]’s injuries were not accidental, but instead the 

result of abuse. These injuries include rib fractures, retinal 

bleeding, bleeding and swelling in the subdural and subarachnoid 

hemispheres of the brain, ventricle bleeding, and a loss of 

differentiation between white and gray matter cells within the 

brain, resulting in potentially irreversible brain damage. 

Additionally, it is undisputed that Mother and Father were the sole 

caregivers during the period when the abuse occurred. Ms. 

Spagnuolo’s summation of Mother and Father’s separate reports 

regarding the night of December 4 indicates that either parent 

would have had opportunity to commit the abuse. As neither 

parent offered rebuttal testimony, the [c]ourt finds that CYS 
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established a prima facie case that Mother and Father were the 

perpetrators of abuse.

Juvenile Court Opinion, 3/10/20, at 6-7 (footnotes omitted).

The certified record supports the juvenile court’s finding of abuse as 

perpetrated by Mother. See 23 Pa.C.S. § 6303(b.1); 23 Pa.C.S. § 6381. The 

record reveals that J.V. suffered significant physical injury while in the 

exclusive care of Mother and Father. Critically, Pat Bruno, M.D., a member of 

the pediatric child abuse team at Geisinger Medical Center, testified that J.V. 

presented subsequent to cardiac arrest and suffered bilateral retinal and 

subjunctival bleeding and bruising, swelling, bleeding, pressure on the brain, 

as well as swelling to the neck, and fractures to the first rib. N.T., 1/15/20, 

at 8-10, 14; Exhibit 1. Specifically, J.V. experienced bleeding between the 

layer of tissue surrounding the brain and the inner layer of the brain, as well 

as intraventricular bleeding in the brain. Id. at 9. Additionally, the swelling 

was so extensive that the back portion of J.V.’s brain was herniating through 

an opening in the back of the skull, the foramen magnum, and there was also 

a loss of differentiation of the white and grey matter in the brain. Id. at 9-

10. 

Moreover, Dr. Pat Bruno, opined that the foregoing injuries were notaccidental in nature. Id. at 13-14, 19; see also N.T., 1/15/20, Exhibit 1. 

The following exchange occurred at the dependency hearing, 

Q. Okay. Now, Doctor, I’m gonna ask you if you have an opinion 

whether or not the injuries you just testified to regarding [J.V.], 

whether they were accidental or non-accidental in nature?

A. They were non-accidental in nature.
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Q. And can you tell us why you have that opinion, what your basis 

is?

A. My basis is the constellation of findings with this child, the 

fracture of the ribs, the access of – multiple areas of bleeding in 

the brain, the subarachnoid, the subdural, the swelling of the 

brain, the bleed into his ventricles, the damage to his brain, the

gray matter/white matter issue that I discussed with you.

The constellation of injuries in a child that was, otherwise, 

relatively healthy, did have some feeding issues but otherwise 

relatively healthy prior to this, this constellation of injuries can be 

explained by non-accidental trauma. 

Id. at 13-14. Dr. Bruno noted that the injuries were acute and would have 

caused immediate signs and symptoms. Id. at 10-11, 17. He further 

explained, “Those injuries would have occurred . . . immediately prior to one 

or both of the parents noting th[e] change in the child’s behavior.” Id. at 18-

19. In turn, Dr. Bruno further opined that the injuries suffered by J.V. 

constituted physical abuse. Id. at 14.

Further, as to the extent of the injury to J.V., the records from Geisinger 

Medical Center note a “severe, un-survivable injury” without indication for 

neurosurgical intervention. N.T., 1/15/20, Exhibit 1. Dr. Bruno testified that 

J.V. was no longer exhibiting higher cerebral functioning, and that such 

cerebral injury was likely irreversible. On direct examination, Dr. Bruno 

stated:

There’s very little motion. [J.V.] does have some movement 

of his arms and legs; but they said that the reflexes he has are 

very primitive, brain-stem-type of reflexes. . . .

And so the indication was that they were concerned that 

there weren’t any areas of higher functioning, cerebral-type 

functioning going on. They indicated that what they saw with him
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as far as activity, he’s got . . . a gag reflex; and he has 

spontaneous respirations. But they indicated that these were 

probably brainstem functions that we were seeing.

He did have an EEG. He has had quite a few EEG’s, and at 

least one of them has indicated that here was very little electrical 

activity as far as the cerebrum was concerned. So, you know he 

suffered, you know, a devastating anoxic injury and probably most 

of these injuries, at least in the cerebral area, are not gonna be 

reversible. It’s hard to say, you know, for sure. But that’s what 

the neurologists are saying, that some of this change is gonna be 

irreversible.

Id. at 13. 

Elizabeth Spagnuolo, a caseworker in the CYS Assessment Unit, testified 

that both Mother and Father were the sole caregivers of J.V. during the 

relevant period of time and neither offered any real explanation as to how J.V. 

became injured. Id. at 24-26, 29. Instead, they proffered that J.V.’s primary 

pediatric physician, who had been seeing J.V. approximately every three days 

due to a failure to gain weight, perhaps missed something. Id. at 26, 31-32. 

Moreover, their inconsistent accounts of the morning led Ms. Spagnuolo to 

believe that they were not being entirely honest. Id. at 29. She observed 

that, while Father reported shouting in an attempt to wake his nonresponsive 

son, Mother indicated that she did not hear anything unusual prior to finding 

the child at 7:45 a.m. Id. Ms. Spagnuolo further observed that, based upon 

the fact that the family’s apartment is “quite small,” both Mother and Father 

would have been aware of what was going on . . . or at least been able to give 

more information of what occurred that evening then – or that morning than 

what they had.” Id. at 29-30. 
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As confirmed by the forgoing evidence, the certified record supports the 

juvenile court’s finding of abuse pursuant to 23 Pa.C.S. § 6303(b.1), as 

perpetrated by both Mother and Father. Accordingly, we do not disturb it. 

Given the clear and convincing evidence adduced during the hearing, Mother’s 

claim that she did not abuse J.V., and was not aware of any abuse, strains

credulity. That medical assistance was sought quickly after the physical abuse 

was inflicted does not detract from the court’s finding. Accordingly, we affirm 

the juvenile court’s order of adjudication and disposition finding child abuse.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/14/2020