J - S96015 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: N.C., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.B. No. 1115 WDA 2016

Appeal from the Order Entered June 30 , 2016 In the Court of Common Pleas of Blair County Civil Division at No(s): CP - 07 - DP - 120 - 2015/FID #07 - FN - 00065 - 2015 BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J. MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 9, 2017 J.B. (Mother) appeals from the order entered on June 30, 2016, in the context of a dependency proceeding that resulted in the finding that N.C. (Child), born in August of 2015, was the victim of child abuse perpet rated by J.C. (Father) 1 and by omission as to Mother. The order declined to find aggravating circumstances. After review, we affirm. This appeal centers on a petition requesting a finding of child abuse and a motion for aggravated circumstances filed by Blair County Children Youth & Families (BCCYF) against both Mother and Father. In Mother’s brief, she raises the following issues for our review: I. Did the [c]ourt commit error in concluding that [M]other J.B. committed child abuse by omission thus ju stifying a founded report? II. Is the standard of prima facie evidence to establish abuse unfair to an individual in the shoes of [Mother] given the

____________________________________________ 1 Father did not appeal from the June 30, 2016 order and is not a party in the instant matter.J - S96015 - 16

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consequences of such a finding and the lack of evidence that she had knowledge of such abuse[?] Mothe r’s brief at 4. Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S. §§ 6301 - 6375. Moreover, we note that: [T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determina tions of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court’s inferences or conclusions of law. Accordingly, we review for an abuse of discretion. In re L.V. , 127 A.3d 831, 834 (Pa. Su per. 2015) (quoting In re A.B. , 63 A.3d 345, 349 (Pa. Super. 2013)). We have reviewed the certified record, the briefs of the parties, the applicable law, and the comprehensive opinion authored by the Honorable Timothy M. Sullivan of the Court of Common Pleas of Blair County, dated June 30, 2016. We conclude that Judge Sullivan’s thorough, well - reasoned opinion properly disposes of the issues raised by Mother. Thus, we adopt Judge Sullivan’s opinion as our own and affirm the order appealed from on that Basis. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/9/2017I This dependency case 

### is also connected with a matter involving J.B . 's daughter , L.B.

For the purposes of this opinion, however, we wiJJ not address issues involving L.B. 1 i I -- · - · . - ~ .1 / \ . \ ' I \ ! ) \ ' docs not support a finding of aggravated circumstances. Court also finds that J.B. and J.C. perpetrated the abuse. However, we find that the abuse Court finds that N.C. suffered abuse under the custody of his parents, J.C. and J.B. This "Agency") Petition for Finding of Child Abuse and Motion for Aggravated Circumstances regarding N.C. (D.O.B. 8/f/15) 1 • For the reasons explored herein, this Now before the Court is Blair County Children Youth & Families' ("BCCYFn or OPINION AND ORDER COUNSEL FORBCCYF COUNSEL FOR MOTHER COUNSEL FOR FATHER GUARDIAN AD LITEM JUSTIN WIIT, ESQUIRE TRACI L. NAUGLE, ESQUlRE ASHLAN CLARK, ESQUIRE TYLER A. ROWLES, ESQUIRE PRESIDING JUDGE -HON. TIMOTHY M. SULLIVAN FID#07~FN-00065-2015 CP-07-DP-120-2015 fN THE INTEREST OF N.C., a minor IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVAN1A Circulated 01/20/2017 09:24 AM2 2 The amount of testimony received in this case is voluminous=-we therefore set forth only a brief factual history here. Extended discussions of the testimony are provided in the Discussion, infra. 3 The discovery of these injuries as well as their sev e rity is detailed in our Discussion, infra. handle" fractures of the legs; and a Grade 2 liver laceration. [N.T. Feb 12, p. 58~65]. finding rib fractures 

### in various states of healing, an upper 

### lip frenulum injury, "bucketinfection. [N.T. Feb 12, p. 72]. Dr. Clarke then performed a full examination of N.C., Dr. Clarke with N.C.'s medical history, explaining that N.C. recently had a respiratory specializing in child abuse, examined N.C. [N.T. Feb 12, p. 57]. J.C. and J.B. provided emergency department. [N.T. Feb 12, p. 56]. Dr. Jennifer Clarke, a pediatrician On October I, 2015, N.C. presented at the Children's Hospital of Pittsburgh developmental delays. [N.T. Feb 12, p. 40]. February 7, 2016, while the Agency had custody of N.C., revealed no further injuries or Pittsburgh. [N.T. Feb 12, p. 38]. A later follow up appointment with Dr. Castel on to BCCYF and scheduled a child abuse consult ("CAC') with Children's Hospital of N .C. ' s upper lip frenulum. Based upon this presentation, Dr. Castel reported the injuries Castel found rib fractures, both recent and in various states of healing and an injury to Castel believed to be consistent with child abuse. 3 fN.T. Feb 12, p. 40]. Specifically, Dr. N.C. presented to Dr. Castel at Nason Hospital with a number of injuries that Dr. pediatric medicine. p. 19]. At the February 12 hearing, this Court qualified Dr. Castel as an expert in Nason who has practiced for twenty-three (23) to twenty-four (24) years. [Feb 12 N.T., Joseph Castel, M.D. [Feb 12 N.T., p.201. 13-21]. Dr. Castel is a general pediatrician at September 30, 2015. On that day, J.B. took N.C. to Nason Hospital for a sick visit with The allegations of abuse inflicted upon N.C. begin with a doctor's visit on PROCEDURAVFACTUAL HIS1'0RY 2 

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When asked about thes e injuri e s, J.C. provided a number of explanations. [N.T. Feb 12, p. 71-811, According to Dr. Clarke , J.B. appeared puzzled by some of these explanations, but supported some of J.C. 's contentions. Id, It is Dr. Clarke's professional opinion that N.C. suffered child abuse and none of the explanations provided by J.C. and J.B. account for N .C. 's Injuries. [N.T. Feb 12, p. 79-81, 85]. Dr. Clarke believes that, in the totality of the circumstances, a reasonable person would have known that N .C. was hurt at the time any one of N.C/s injuries occurred. [N.T. Feb 12, p. 85). A follow up examination on October 13, 2015, after the Agency took custody of N.C., showed no new injuries. [N.T. Feb 12, p. 86-87]. The Agency commenced the instant matter by filing an Application for Emergency Protective Custody on October 1, 2015. The Court granted this Application on the same day, issuing an Order which plnced both legal and physical custody of N.C. with the Agency. The Agency subsequently filed a Dependency Petition on October 2, 2015, and the Court appointed Tyler A. Rowles, Esquire to represent N.C. 's interests and Traci L. Naugle, Esquire to represent J.B. On December 18, 2015, the Agency filed a Motion for Aggravated Circumstances alleging that they received an indicated report of child abuse nam.ing J.C. as the perpetrator and J.B. as a perpetrator through aggravated physical neglect. The Court placed N.C. in shelter care on October 15, 2015 and declared him dependent on October 30, 2015. Both children currently remain in foster care, under the legal and physical custody of the Agency. J.B. 's parents , T.B. and P.B., filed Petitions to Intervene on January 21, 2016. The Agency answered these Petitions on February 7, 2016, recommending that the Court deny them for lack of standing pursuant to the Juvenile Act. The Court denied that Petition by Order of Court on March 14, 2016. We4 23 Pa. C.S.A. § 6303{b,l) (in part) .



## * (5) Creating a reasonable likelihood of bodily i n jury to a child through any recent act or failure to net. 

## *

* 

## * (1) Causing bodily injury to a child through any recent act or failure to act. (h.l) Child abuse--The term "child abuse" shall mean intentionally; knowingly or recklessly doing any of the following: the definition of child abuse in this Commonwealth: Protective Services Law ("CPSL 11 ). 23 Pa. C.S.A. § 6301 et seq. The CPSL puts forth Under Pennsylvania law, findings of child abuse are regulated by the Child APPLICABLE LAW We now proceed to disposition. abuse allegations pertaining to N.C. Agency, Mother, and the Guardian-Ad-Lite m , we are prepared to dispose of the child Finding of Child Abuse by March 31 J 2016. Having received memoranda from the and J.B. We then directed the parties to file memoranda of Jaw relative to the Petition for this Court received testimony from Dr. Castel, Dr. Clarke, caseworkers from the Agency, Permanency/Dispositional review on February 12 and March 

### 7, 2016. At these hearings, Relative to the pending Petitions and Motions, this Court held steps to be approved as Kinship Fosler Parents. also directed the paternal grandparents, J.C and T.C., to take all necessary remaining -- - -·--- · ···~ -5

custody of the parent or custodian: circumstances in dependency such that the subject child should be removed from the Under the Juvenile Act, Pennsylvania courts may find that aggravated L.Z., 111 A.3dat 1185. they did not commit the abuse or they were not responsible for the welfare of the child. parents or other persons responsible for the welfare of the child to present evidence that The presumption under Section 6381 ( d) is rebuttable and allows those accused

23 Pa. C.S.A. § 638l(d), (d) Prima facie evidence of abuse--Evldeuce 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. perpetrated the child abuse based upon prima facie evidence: parent 01· other person responsible for the welfare of the child may be found to have perpetrated the abuse. 42 Pa. C.S.A. § 634l(c); L.Z. .. 111 A.3d nt 1176. However, a and convincing evidence thar (1) the alleged abuse occurred and (2) the person accused For this Court lo sustain a finding of child abuse, the Agency must present clear either temporarily 01· permanently ." 111 re L.Z., 11 J A.3d 1164, 1168 n, 3 (Pa.2015). causes a child severe pain; or (2) significantly impairs a child's physical functioning, old requirement of "serious bodily injury," which was defined as "an injury that: (J) substantial pain." 23 Pa, C.S.A. § 6303. This definition is considerably broader than the "Bodily injury," as used in the CPSL, means "impairment of physical condition or6 42 Pa. C.S.A. § 6303. "Serious bodily injury," Bodily injury which creates a substantial risk of death of which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. 

## * * 

## * * * "Aggravated physical neglect," Any omission in the care of a child which results in a life

- threatening condition or seriously impairs the child's functioning. 

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## * * 

## * (2) 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. 

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* "Aggravated circumstances." Any of the following circumstances: Our Legislature specifically provides that child abuse 

### may rise to that level: 42 Pa. C.S.A. § 6351(e)(2).

(2) lf the county agency or the child's attorney alleges the existence of aggravated circumstances and the court determines that the child has been adjudicated dependent, the court shall then determine ii' aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the child's parent, guardian or custodian or to preserve and reunify the tinnily shall be made or continue to be made and schedule a hearing , . , 

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## * (e) Permanency hearings-



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37-38, 40 ] . He also testified that the callouses became so thick that they lifte d N.C .' s pain and distress, which would have presented with fussiness and crying. [N.T. Feb 12, Dr. Castel testified that the fractures would have caused N.C. a great deal of both child abuse or a major unrestrained motor vehicle accident. [N.T . Feb 12, p. 36, 40]. [Feb 12 N.T., p. 32]. In Dr. Castel's opinion, these fractures would only be possible from chest, which showed multiple areas of callous formation indicating healing fractures. these deformities, feeling for any crackles or crepitations in the rib cage. [Feb 12 N.T., p. /1) , l , >6 45-46]. Based upon that examination, Dr. Castel ordered X-ray radiographs of 

### C rib cage that was immediately identifiable. [Feb 12 N.T., p. 26-28). Dr. Castel palpated During the September 30th visit, Dr. Castel noted a "visible deformity" on N.C. 's 1. The Rib Fractures the injuries N.C. suffered in 

### tum. by clear and convincing evidence, N.C. suffered child abuse. We shall address each of Based upon the presentations of Dr. Castel and Dr. Clarke, this Court finds that, A. The Alleged Abuse of N.C. these questions in turn. suffered abuse, whether J.B. perpetrated the abuse by omission. We shall address each of abuse; (2) if N.C. suffered abuse, whether J.C. perpetrated the abuse; and (3) if N.C. Before the Court are three interlocked questions: (1) whether N.C. suffered child I. CHILD ABUSE FINJHNGS separately. Abuse and Motion for Aggravated Circumstances. This Court shall address each issue We must now determine the merits of the Agency's Petition for Finding of Child DISCUSSION8 Dr. Cl arke al s o found multiple rib fracture s on N.C. in vari o us slate s of h e aling , some h aving c allou s ed into hard lumps and oth ers pre senting with o ut callouses. [N. T . F eb J 2 , p. 62

- 63]. Dr. Clarke s p e cifically te s tified that th e forces neces sary to create these types of fra c tures are " well out of the re alm of reasonable in caring for an infant" and could not have o c curred through norm al handling. {N.T. Feb 12 , p . 7 9- 81]. She al s o te s tified that the s e injurie s would have cau s ed the chil d subs tan tial pain and N .C. would hav e manifeste d the p ain in s uch a mann er as to let any reason able person know that h e w a s significan tly injure d. [N.T. Feb 12, p. 84-85]. We n o te that Dr. Clarke could n o t put a timeframe on how l o ng N.C. might have manifested this pain . Id. H o wev e r, Dr . Cl arke w as abl e to d e t e rmine that N.C. 's he aling fracture s were at le ast thre e week s old and hi s a c ute fr ac ture s occurred less th an a w e ek be fore the examination. [N. T . Feb J 2, p . 63]. X -ray r a di ographs taken by b o th Dr. C a stel and Dr. Clarke also c onfi rme d th e pr es enc e of fr a c ture s . D r. Cast e l and h is coo r din ating radiologist found fi v e total fr ac ture s on N . C . , notin g multiple areas of c allous form ation around multipl e ribs . (N.T . Feb 12, p. 33-34, 62] . Dr. Cl arke found thre e healing fr a cture s on N . C.>s ri g ht s i d e, as well as fi v e acute fractu re s=-on e on hi s right side and four on his left side. (N . T. F eb 12 , p. 62). Dr. Ca s tel ' s radi olog i st sp e cific ally rem arked th at th es e injuries w e re "highly su s pi c iou s for non -acc idental tr auma . " (N .T. Feb 12, p. 33 ]. skin . [N . T. Feb 1 2, p. 35 ). Dr . Cas t e l t e sti fie d th at he h ad previou s l y o nly se en s u c h fr a cture s after pe rformin g car diac pulmonary res us c itati on on i nfant s . [N.T . F eb 12 , p . 34-35] .9

w hil e J .B . wo rke d. [ N . T . Mar 7 , p. l28

- 33J. T he on l y o th er p erso n s w h o we re aro u nd watc h N . C. du rin g the cl ay w hi le J . C. w orke d and J. C . w o uld w atch N. C . during the n i g h t old

- J . B. an d J .C. th e n tran s iti on e d int o a twe l ve h o ur s chedu l e, whe rein J . B . wo uld b efore this C o urt th at s h e and J. C . were N.C. ,s prim ary car etakers lN.T. M ar 7 , p . 131-



## . . w e.. ~--k;, 3 3 ). J .B . c ared for N.C. n early aro und-the- c l oc k fr om b irth until N.C . w as fi v e ..- injuri es b a sed upo n bo th th e ph ys i c ians ' tes timon y an d J. B.'s testimony . J . B . testifi ed This C o urt note s th e ab s en ce of a re as o n able ex plan ati o n r egarding N .C . ' s s ev e re the force nec es sary t o g e n erate db fra ctures. Id . al so opi n ed that the am ount o f force g e n e r ated by su c h an in ci d e nt w ould b e we ll s hort of In thi s i n s tan ce , D r. C l arke found i t un us ual th at J.C . wo uld c atch N . C. by hi s c hest and man age d to catch N .C . by h i s ch est be fore N. C. hit the floo r . [N. T . Feb J 2, p. 63 -6 4, 75]. ex plan ation p roffere d by J.C., wherein N.C. all e ge d ly fell from J. C/ s a11 11s and J .C. produc e. [N . T. Feb 12 , p . 3 4 , 62

- 6 4]. D r . C l arke t oo k p articu lar exception t o anoth er re quired t o gen e rate a rib fractu re 

### i s mu c h greater than e ither o f th e i ncid e nt s c o uld Ho we v er , b oth ph y s ic i an s repeatedl y state d th at th e am o un t o f press ure and force N. C. 

### ' s ch est to he l p him c le ar th i ck mu cos a and formul a. [N . T. F eb 1 2, p . 7 6- 7 8]. off a c o uch o nto a h ard woo d fl oo r rece ntly and als o that h e h e ard a pop af ter pu shi ng o n p rovid ed b y J. C . and J. B . When to ld about th e rib fra cture s, J.C. ex plain e d that N.C. fe ll We al s o n o te that Dr. Cas tel 

### and Dr. C larke disc o unted all of th e· e x pl an atio n s [N .T. Feb 12 , p . 63- 6 4] . m ec h an is m , all w e ll ou ts i de w hat c ou ld b e c onsid ered n o rmal h andl ing o f an i n fant. thes e fr ac tures may h av e o c curre d b y direc t trau ma or by a squee z in g/c o mp res s io n res ult of ch ild abu se . [N .T . F eb 1 2 , p . 40 , 62

- 63 , 8 5 ] . D r . C l arke s pe cifically s t ate d th at In bo th D r . Caste l an d D r . C larke's pro fe ssio n al opi ni on s, th ese fr ac tures we re th e10

during the first five weeks of N.C.'s life were J.B.'s parents, one of whom testified that he was not involved ill N.C.'s care and J.C. and J.B. performed almost all ofN.C.'s care. [N.T. Mar 7, p. 148-52]. Based upon all the circumstances and evidence presented before this Court, fil find that clear and convincing evidence that N . C. 's rib fractures constitute child abuse under the CPSL. Both physicians testified that these injuries constitute child abuse and neither parent could explain how the child suffered these injuries by any other means. We also note that these injuries placed N,C, in substantial 

### pain and represent 

### a systematic failure to care for N.C. Therefore, based upon the evidence presented, we find that N .C, 's rib injuries constitute child abuse under the CPSL.

2, Frenulum Injury Both physicians also found an injury to N.C.'s mouth. Specifically, Dr. Castel discovered that the frenulurn between N.C.'s top two teeth showed signs of trauma. [N.T. Feb 12, · p. 27J. In his medical opinion, the injury was an old hematoma, approximately one quarter inch in length. [N.T. Feb 12, p. 28~29], Dr, Castel believed that N .C. suffered the injury approximately one week earlier, Id. The injury was concerning to Dr. Castel-considering the child's age and development, a hematoma of this nature is most likely inflicted by blunt force and the amount of blood the injury generates should alert caretakers that the child requires immediate attention. [N.T. Feb 12, p. 29-30]. Dr. Castel also testified that the child could not have inflicted the injury upon himself, [N.T. Feb 12, p. 31). Such an injury, in Dr. Castel's opinion, would cause substantial pain for at least a few days and present acutely when feeding the child a bottle. [N.T. Feb l 2, p. 38). Dr. Castel firmly believes that this injury is the result of child abuse. [N.T. Feb 12, p. 40].J 1 Dr. Clarke also found the frenulum injury, along with bruising on N.C.'s right cheek and lip. (N.T. Feb 12, p, 58]. Tn her medical opinion, the injury would have been noticeable by the blood loss alone. [N.T. Feb 12, p. 59). While Dr. Clarke did not describe the injury in detail, she did indicate that the child could not have cut his own frenulum and the injury could have been inflicted by grabbing the child's face and s hoving a hard object (e.g, a bottle) into his mouth. Id. Dr. Clarke unequivocally believes that this injury is the result of child abuse. 

### [N. T. Feb 12, p. 85]. J.C. attempted to explain the nature of this injury to Dr. Clarke, stating that N.C. enjoys his pacifier and also hits himself in the face and mouth. lN,T. Feb 12, p. 80]. According to J.C., he turned away from N.C. during one of these episodes and reemerged to find N .C. with a finger 

### in his mouth. Id. When J.C. removed the finger, he noticed some blood and held a napkin under N.C.'s mouth until the bleeding stopped. Id. Dr. Clarke discarded this explanation as not credible. [N.T. Feb 12, p. 81]. J.B. presented a differe nt explanation of this injury. According to her 1 J.C. caJled and stated that he saw a little bit of blood in N.C.'s mouth after removing a bottle. [N.T. Mar. 7} p. 134]. J.B. then asked whether N.C. 's mouth was overly bleeding and J.C. responded that it was only a "little bit and that he had got a cold bottle and had put it in his mouth to kind of like help it." Id. J.B. then told J.C. she would be home as soon as possible and arrived home to find no swelling, bruising, or bleeding. Id, This Court finds that the frenulum injury was the result of child abuse. We once again find the testimony of Dr. Castel and Dr. Clarke credible in all respects and believe that this injury could not have been self-inflicted. The explanations provided by both J.B. and J.C. are entirely inconsistent and fail to explain how N.C. could have rec e ived an4 Dr. Clarke also testified that this injuries can result from c]ub foot repair or by pulling

on the legs during chi1d birth. However: she excluded these possibilities because J.B. stated that the child was pulled by his chest during birth. [N.T. Feb 12i p. 71]. 12 disease). (N.T. Feb 12. p. 81]. In her medical opinion, Dr. Clarke stated that possibly cause bone malformation, specifically osteogenesis imperfecta (brittle bone Dr. Clarke also ruled out any type of disease or other diagnosis that would known that he was injured. Id. TI1e parents could not explain these injuries, injuries would have caused N.C. substantial pain and any reasonable person should have p. 68-69]. Dr. Clarke also stated that N.C. became fussy when she touched his lower right leg. [N.T. Feb 12, p. 69]. In her medical opinion> Dr. Clarke states that these opined that the fractures were noticeable and probably acute to subacute. fN.T. Feb 12, legs." [N.T. Feb 12, p. 68]. While Dr. Clarke could not date the injuries exactly, she they are typically seen with a yanking or jerking motion, as well as with flailing of the injuries are "highly specific for child abuse" and do not occur with normal care-v-rafher, shape on 

### Xray radiographs. [N.T. Feb 12, p. 67-68]. Dr. Clarke testified that these series of micro-fractures along the ends of the bones, which present in a bucket handle fractures on N .C. 's legs. "Bucket-handle" fractures, or classic metaphyseal lesions, are a In the course of the child abuse consult, Dr. Clarke also found "bucket-handle" 3. J.,eg Fractures constitutes chi1d abuse under the CPSL. Based upon the testimony presented. this Court finds that N.C.'s frenulum injury substantial amount of pain for a few days and would not take a bottle without pain. required medical attention. DJ'. Casie) also remarked that the child would be in a amount of blood generated by such a hematoma would alert any caretaker that the child bottle from N.C.'s mouth may have caused an injury, both physicians testified that the injury mostly likely caused by blunt force trauma. While it is possible that removing the1 3 os te oge ne si s imp erfec t a wou ld res ult in mi d

- s haft di aph yse al frac tures when th e ch ild b e g i ns t o w alk, u n l ike th e e nd of sh af t fra c tures s e en on N . C. 's X~Ray r adio grap h s. lN , T . F eb I 2: p. 82]. Dr. Clarke al s o fou n d n o othe r di agno stic symptoms for o steo ge nes i s imp erfec t a. [N . T . Feb 1 2, p , 8 l

- 82 ] . Fu rth er , D r . C l arke also no te d th at o s t eoge n esis imp erf e c t a wo uld n o t e xp l ain the o th er i n j uries s uffered b y N . C . [ N . T . Feb 1 2 , p . 82-83 ] . T hi s C ourt fi n d s th at N. C.> s l e g injuri es w ere a res ult o f c hild ab use. W e fi nd D r. C larke ' s te stim on y c re di b l e in all resp ec t s re g ardin g the "b uc ke t-h an dle " fra ctures, w hic h m e h i ghly s p e cific fo r child ab u se and co ul d not b e ex pl aine d by ei th er pare n t. Wh ile J. B. arg ues th at th ese inj uri es co u l d h av e res ulte d fr o m c hi ldbi rth , there i s n o e v i de nce

· th at n p h y sici an or o the r perso n p u lle d N. C .'s le g s to ass i s t in b irth, We als o no te that N . C. wo uld hav e bee n i n su bs tantial p ain and any reaso nabl e per s o n s ho ul d hav e kno wn th at N .C. was inju re d . Base d up on th e tes tim o n y p,rese nte d, this Co urt finds th at N.C. 's l e g iniul'i e s co n s titute child abu se un d er the CPSL.

4. Liv er Lac eration D r. C larke al so fo u n d , thr ou gh a c omputeri ze d t omogr ap hy ( C T) scan, that N. C . suffe red a l iver la ceration. [N. T. F eb 1 2, p. 64 ] . In h e r me dic al opi nion , the sev erity of th e l aceration w as a Gra d e T w o o ut o f fo ur . [N.T . F eb 12 , p . 65]. Thi s fin d ing al armed D r. C l arke b ecau se N. C. h a d no hist o ry o f s i gni fi cant ac c i d e n tal trauma aud thi s injury i s typ i c all y cau se d by b lu nt fo rce trauma t o the b e Jl y. Id. Dr . C l arke tes tifi e d that p u n c hin g o r oth er unil ateral fo rce s typ icall y cann o t c au se thi s type o f i njur y- instea d , the fo rc e i s ap pli ed a s s t ompi ng o r an other re all y si gnifi cant force wh e re th e chil d is o n a h ard s urfac e. [N. T . F eb 1 2 , p. 6 5-6 6 ) . Dr. C larke al s o stated that th e o nl y sy mpt om N. C. wo ul d hav e ex hibited is fu ss i ne ss and th e same traum a that cau s ed th e ri b f ractu res c ould h ave cau s e the liv er l aceratio n. [N.T . Feb 12 , p . 93

- 94 ] . H owe v e r , D r . C l arke caution ed that th e rib frac ture al o n e cou ld no t h ave cau sed the l ace ratio n. [N . T. F eb 1 2 , p . 94 ] . In14

her medical opinion, Dr. Clarke slates that N.C. would have been in substantial pain when this injury was inflicted and any reasonable person should have known the child was injured. [N.T. Feb 12, p. 66-67]. Dr. Clarke also discounts any of the explanations provided by J.C. regarding this injury. Similar to the rib fractures, Dr. Clarke indicated that J.C. could not have inflicted the liver laceration by catching N.C. by his chest, by pushing on N.C/s chest while placing him in his car seat, or through N.C.'s alleged fall from the couch. (N.T. Feb 12) p. 75-76, 79-81). J.B. indicated that she was unaware of this injury. [N.T. Mar 7, p. 137]. In DJ'. Clarke's medical opinion, these injuries were the result of child abuse. [N.T. Feb 12, p. 85]. TI1is Court finds tbat the liver laceration N.C. suffered was the result of child abuse. In the absence of any other explanation and taking into consideration the significant forces required to generate such an injury, we find that the only explanation for this injury is a blunt trauma force exerted upon the child. We are especially cognizant of Dr. Clarke's testimony that this injury is typically caused by some type of stomping 01· other trauma exerted while the child is against a hard surface. Dr. Clarke also specifically stated that such an injury would have caused N.C. substantial pain. Based upon the testimony presented , this Court finds clear and convincing evMence that N.C. 's liver Jaceration constitutes child abuse under the CPSL.

5. Conclusion Based upon the testimony presented, this Court finds that N.C. suffered child abuse. The testimony of Dr. Castel and Dr. Clarke, which this Court finds credible in all respects, shows that N.C. suffered a litany of injuries that are inconsistent with the normal care of an infant. It is clear to the Court that these injuries placed N.C. in substantial pain. We also find that the explanations proffered by the parents are entirely1 5

in c on s i s tent with th e exp ert findin g s and fail to e xplain any of the injuries N.C . s uffered . Th e Court finds that the e xpert fin d ings and opinion s, in c ombin ation with the lack of an y re a s onable explanati o n by the p are nts, constitu tes cl ear and con v incing evidenc e th at N . C. 's injuri es are the result of child abu s e. B. J.C. 

### As An Alleged Pe~ · pett·ator T his Co urt must now determin e whether J.C. perpetrated th e abu s e a gainst N.C . W e find , p re liminarily , th at be cau s e (I) J.C . i s on e o f N . C . ' s parent s and (2) N . C . suffered abus e "o f such a n ature a s would ordinarily n o t be sust ain e d o r exis t e xc ept by r eas on of the acts or omiss ions" of the par e nts, th e Agen c y pr es ented prim a facie ev i dence of child abu se by J.C. Thi s pre s umption is ba se d up o n J.B. ' s admis s ion that sh e and J.C . w ere N . C.'s primary c aretakers fro m birth until this C ourt tr ansferre d cust o dy to th e Agen c y. W e also find that the sec ond p rong is met becaus e o f N .C . 's y o ung ag e , th e l ack o f o ther per s o ns present wh o would have a cce ss to him , and th e s e v erity of the injuries s ustain e d =- in e s senc e, the C ourt finds th at eith er J . B. o r J . C . infli c te d the abuse upon N . C. o r f

ailed to p r ote c t him fr om the s ame . See In re L.Z., 111 A.3 d 1164 , 1 1 85- 

### 86 (Pa. 2015) ( fi nding that m e dical evid e nce of penil e lacer ation, c heek bruising , and severe di aper ra s h and yeast in fecti o n "demonstrated that [c]hild's injuries w e re neither accidental nor self

- infli c ted and be cau s e w as onJ y in th e c are o f [m]o ther and [a]unt, the injuri e s were shown t o be a "of s uch a nature es would ordinarily not b e s ust ain e d or exist except by re a s on of th e acts or omi ssi ons " of th e parent or oth er pers on resp o nsibl e for th e we l fare of the c hild '" ). There fo re , th e burde n shift s fr om the Ag en cy t o J . C . , w ho mu s t pre se nt evid e n ce whi ch rebuts thi s p res ump ti on . _ .... ........._ .. 

# - ~ -- ... . 

# __ .. . ____._ 

### ... 

# ~- - -16 This Court finds that J.C. failed to rebut this presumption and .1.C. perpetrated these acts of abuse upon N.C. Both physicians testified that the rib and liver injuries suffered by N .C. would require a substantial amount of force-specifically, in the context of the liver injury, Dr. Clarke testified that N.C. 

### must have suffered some type of blunt trauma to the belly akin to stomping or another significant force. [N. T. Feb. J 2, p. 36, 65-66]. We find that it is entirely possible that either J.C. or J.B. inflicted these injuries-pursuant to our Supreme Court's decision in L.Z. and the presumption raised by Section 6381 ( d), we need not identify the individual parent who inflicted the abuse. 111 

### re L.Z., 111 A.3d at J 186 (allowing conclusion that parent "perpetrated abuse on child either by inflicting the injuries or failing to protect [c Jhild" from a caretaker related to the parent). This Court also received a great deal of testimony regarding J.C.'s explanations for N.C.'s injuries. Dr. Clarke testified that J.C. first explained that N.C. fell from a couch. According to J.C., he Jeft N.C. resting on pillow to go gel N.C. a bottle and came back to find N.C. o.n the hardwood floor, [N.T. Feb 12, p. 72-73]. According to Dr. Clarke, it seemed as though J.C. and N.C. were alone during this alleged fall, and J.B. also could not remember whether she told Dr. Castel about this incident. [N.T. Feb 12, p. 73-74). Dr. Clarke discounted this incid e nt from explaining any of the injuries to N.C., as the fall described by J.C. could not generate the forces necessary to explain the injuries. [N.T. Feb 12, p. 75]. J.C. then proffered an explanation to Dr. Clarke wherein J.C. almost dropped the child. [N.T. Feb 12, p. 75). According to J.C., N.C. dropped down to J.C.'s knee and J.C. caught N.C. around the chest before he hit the ground. Id. Dr. Clarke testified that J.C. did not indicate whether he suspected that the child was injured. Id. In her medical opinion, Dr. Clarke believes that this could not account for most of N.C. 's injuries, Circulated 01/20/2017 09:24 AM17 including the newer rib fra c ture s, fac e/lip bruising, frenul u m injury , or the " buckethandle " fr a cture s . (N. 'f . Feb 1 2 , p . 75-76]. Dr . Clarke al s o indic ated th at grabbin g a c hild around th e ch est is a str ange way to catch a falling child . Id. J. C. als o e x plained to Dr. Clarke that he rec ently pu s hed on N.C .' s c h es t to h e lp N.C. bre athe and h eard a pop. [N .T. F eb 12, p . 76-77]. Ac c ordin g to J.C., be pu s hed on the child's che s t to help him re move some fo rmul a and thick muco s a that bu i lt up during a recent respi ratory infection . ld . J. C. stated that the child seemed m o re conte nt afterw ard . (N . T . Feb 12, p. 77]. J . C . could n o t tell Dr. C larke how hard he was p ushing, but st at e d that he believed he was not u s ing a lot of forc e and did not b e l ie v e that the p o p r e present e d a broken rib . [N . T . F eb 12, p. 77-78J . Dr. Clarke al s o di s c o unte d thi s ex pl anation a s unre aso nable and outs i de th e normal care or h andlin g of a child. Fin al ly, J.C. e xpl ained to Dr. C l arke that he and J.B. re cently h a d di ffi culty re moving N.C. into hi s c ar s e at. [N . T. F eb 12 , p . 78-79]. According to J. C . , he had to pu s h on N . C. in order to remov e N . C . from the vehicle. I d . J.B. c o ncurre d with J . C. and told Dr. Clarke h o w it wa s to rem ove N . C . from the s eat. [N . T. Feb 12, p. 79] . Dr. Cl arke dis a greed with thi s e xpl anation a s w e ll, as pla c ing and rem o ving a child fro m a cur se at "should not cau s e an y kind of injuri e s, Je t al o ne broke n bon es. " 

### Id . With re s pect t o all o f th es e ex planations, Dr . C larke indicate d that J.B . app e ared to not know about th e hi s tory of th es e inc i d e nts exc ept for the c ar seat i ssu e and th e incident with th e cou c h. [N.T. Feb 12, p. 96-97, 99]. In h er m e dical opinion , these pare nts could not e xpl ain th e injuries to N . C., n o ne of the expl anations were reasonabl e and could not hap pen with normal care or h and li ng of a child . (N . T. Feb 12 , p . 7 9- 81]. Further, in the t o tality of th e circ umstanc e s , Dr. Cl arke opined that a re a son able p erson w ould h ave kno w n th at N .C. w a s hurt when any on e of thes e injuries occurre d. [ N .T . Feb 1 2 , p. 85 ).18 This Court agrees with Dr. Clarke's conclusions and finds that all of J.C!s explanations fail to account for N.C.'s injuries, We find Dr. Clarke's opinions both credible and persuasive upon the issue-we cannot conclude that N.C. would suffer injuries of such a severe magnitude through short falls, removal/placement in a car seat, or by pushing on his chest to facilitate the movement of mucosa. Even if this Court were lo accept those explanations, the amount of force involved in any one of those explanations would still result in an injury requiring medical attention. We note that J.C. stated he took the child to the doctor for an x-ray radiograph after the couch fall, however there is no indication in the record that such a visit occurred. [N.T. Feb 12, p. 72]. This Court also received testimony from J.B. regarding the amount of time that she and J.C. spent caring for the child. After N.C.'s birth, J.B. took maternity leave from her job to care for N.C., living in a household with J.C. and her parents. [N.T. Mar 7, p. 126). During that time, J.C. worked during the day, waking up around 4:30-5:00 A.M. and returning home around 5:00-6:00 P.M. [N.T. Mar 7, p. 129-30, 132-33]. J.B. also stated that there were periods of time where she left J.C. alone with N.C. and those times increased when the parents moved into a new apartment. [N.T. Mar 7, p. 137-39]. J.B.'s father, T.B., also noted J.C. and J.B. both had larger amounts of unsupervised time with N.C. [N.T. Mar 7, p. 155]. We note that BCCYF did not lodge any allegations of abuse against J.B.'s parents, and the record does not reflect that J.B.'s parents had unsupervised time with N.C. Therefore, based upon the testimony, we find that the only persons who had unsupervised access to N.C. were his parents.19 Based upon all the evidence presented, we find that J.C. failed to rebut the presumption that be perpetrated the abuse against N.C. As stated before, this Court is not required to find that J.C. actually physically inflicted the abuse upon N.C.-rather) the Agency shifted the burden to J.C. to rebut the prima facie evidence that he perpetrated the abuse against N.C. The Agency established their prima facle case by presenting two experts who attribute N.C. 's injuries to child abuse and by showing that J.C. had unsupervised access to N.C. From there, the only evidence offered in some form of rebuttal were the explanations provided to Dr. Clarke. We accept Dr. Clarke's opinions regarding the infeasibility of these explanations to account for N.C. 's injuries, The Court finds no other evidence of record that would rebut the presumption that J.C. perpetrated abuse against N.C and J.C. declined to present any evidence in his own defense. Therefore, based upon the evidence presented, we find that J.C. failed to rebut the presumption that he abused N.C. and now enter a finding that J.C. perpetrated abuse against N.C. C. J.B. As An Alleged Perpetrator This Court must now determine whether J.B. perpetrated the abuse against N.C. by omission. Similar to J.C., we find that because 

### J.B. is one of N.C.'s parents and N.C. suffered abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parents, the Agency presented prlma facie evidence that J.B. perpetrated the abuse against N.C. Therefore) it is J,B/s burden to present evidence which rebuts this presumption.2 0

inflicte d th e inju ry o r fai l e d in th e ir du ty t o p rotec t th e c hil d, " I d . at 11 8 5 , hol d parent s "acco unt abl e for th e c are an d p ro te ctio n o f the c hild whe th er th ey ac tu ally o mi ss i ons o f th e p aren t o r res p o n si bl e per so n . " Id . Th er efo re, thi s C o urt i s bo u n d t o p er son, s p h ysical p re se nce at the ti me o f th e i njury, bu t rath er extends t o bo th ac t s an d at 11 84 . T h e s t atute " n either me n ti ons n o r fo cuse s up on th e pare nt o r respo n si ble " re s po n si bl e fo r th e ir chi ldre n , abse nt ex te nu ati ng ci rc u ms t an ces . " !11 re L.Z. , 1 1 1 A . 3 d Jn th i s co nte x t , th e law o f th is C o mm o n w e al th make s p arent s c onti nuo us ly



### In re L. Z., 111 A.3 d at 1178 (quotin g /11 

### th e Inte re st o f J.R . W. , 63 1 · A.2 d 1019 , 102 4 (P a. S up er . 19 93) ), T he Leg i s l ature h as d e termin e d th at th e likelih oo d c learl y es tabli s hed abu s e ha s oc cu rred, o ther th an at the h and s 

### of th e c u s todi an , i s s o s m all th at prima fac ie ev id e n ce th e c us todian h as c au se d th e i njury , eith er b y ac t s or omissi o ns, i s all th at i s requ ired . . . . S uc h a stand ar d provid es m aximu m pr o te c tio n for th e c hild v icti m or o th e r ch ildren in th e co mmunity w h o mi g ht be s ubj e ct t o s i mil ar abu s e if th e all eg ed ab u ser w as not id e ntifi e d an d p ermitte d free · acc e ss t o the vi c tim o r oth er vulne rable chi ldre n . presu mp tio n may b e raise d in thi s c ontex t: 2~ 1 5 ). O u r S u pre m e C ourt quo te d an e arli er d ec i s ion of th e S up erior C ourt a s to why th e was in th e pare nt ' s care at the tim e of the injury. !11 

### re L.Z. , 111 A. 3d 116 4, 117 6 (P a . th e S ecti o n 638 l presu mpti on in ca se s wh ere th e re cor d fail s to e s tabli s h th at the c hild A s a pre liminary m atte r , we no te th at P enn s y l vania J aw all ow s thi s C ourt t o r aise 

# - - -- - - ~- -2 1

sw o llen o r bruis ed . (N. T . M ar. 7 , p. 1 3 4]. J. B. als o point s to th e te sti mo ny of D r. C l arke , bl ee ding h a d sub s ided . [N .T. Mar . 7 , p , 134). Sh e furth er stat e s th at N.C .' s lip w a s not (N . T . M ar . 7 , p . 134] . J.B . then st ate s th at sh e drov e s trai g ht hom e to fi n d that th e injury , 

### J. B . stat e s that J.C . pulled a bottl e fr om N . C . ' s mouth and saw some bl e e ding. l eg fra c tu res , or live r l ac e rati o n. (N . T. M ar. 7 , p . 1 3 7 ] . With res pec t to th e fre nulum s h e o nly kne w about N . C. ' s fre nulum i njury and ha d no kn o wl e dge a s t o th e rib fr ac tures, 7 , p . 126]. How e v er, J . B. arg ues th at sh e did n o t perpe trate thi s abu se . J.B . a ssert s that J . B. ag re e s with the Agency' s po s ition th at N .C . s uffere d child abu s e. (N. T. Mar .

111 

### re L.Z . , 111 A .3d at 1185 ( e mph as i s add e d). [Tjh e Legi s lature balanced th e pre s umpti o n of S e ction 638l(d) b y makin g it reb u ttab le a s it mere ly es t ab li s h es "pritnafa d

e evid en ce " th at th e p are nt p erpetrate d th e abu se, 23 Pa.C.S . § 6 3 81 (d) . A s c ommonly und e r s tood,primc, fac te evi den c e. is " [ s juch e vid e nc e a s, in the j u d gment of th e law , is su ffi cient t o establish a g iven fact , or th e g ro up o r ch ain of fa cts constituting th e p arty' s claim o r de fe nse, 

### and whi ch if not rebutte d or c ontra di cted, will rem ai n s uffi c i en t. " B lac k 's Law D ic tion a ry 82 5 ( 6 th e d. ab ridg e d 199 1 ) . Ac co rdin g l y , evidenc e that n child s uff er e d i n

jury Ih a ! would not o rdin aril y be su s tain e d but for the nets o r omis si ons o f the p are nt o r res pon s ible p er son i s sufficient to e s t ablish that th e p are nt or resp o nsible p ers on p erp e trated that abu se unl es s th e pare nt · o r respon s ible p ers on rebut s the pre sumption. T he p aren t or r es pon si ble p erson may p re s e n t e v i d e n c e d e m o n s trati ng that th e y did not infli c t th e abu se , pote ntially by testif y ing th at th ey gav e re sp o n si bility for th e child lo an o th er pers o n about whom th e y h a d no re a son 

### to fear o r pe rh aps th at th e i n juries w e re ac c i den tal rath er th a n abu s ive. The e valuati on of the v alidity of the pr e sumption would then rest with the tri al cou rt evalu ating the credibility of the pr/11111 [a cie evidenc e pr e sented by the C YS ag e ncy and the rebutt al of the par ent or respon s ible person . H ow e v er, thi s pre s umption is rc b uttable throu g h vari o u s typ e s of evi denc e : ··· · - - ---22

wh o co uld n o t estim ate a ti m e frame i n whi c h N. C. w ould mani fes t the p ain of these inj uries. J.B . al s o ar g u es th at she c ann o t b e a perpe tr ator bec aus e s h e to ok N . C. for med ical care whenev er the chil d app eare d 

### HJ . (N .T. Mar. 7> p . 1 2 0-2 2 ) . I n supp o rt o f thi s argu me nt, J .B . po int s to do c t o r vi s i ts on Sep te mb er 22 nd and Sep tember 2 4th, w h e n n e ith er d o c t or saw any m arks> b ru i s e s, o r c all o us e s o n N . C . Id . Sh e al s o s t ates th at s h e did n o t s pe ak w ith J . C. about an y of th e injurie s b efo re th e child abus e co nsult w ith Dr . C larke on Oct obe r 1 s t. [N. T . Mar. 7 > p. 124] . J .B. al so poi nt s to periods of tim e wh ere J . C . an d N .C . were alon e, st ating th at th e abuse may_ h ave occ u rred du ri n g tho se p eri ods o f tim e . T he A gen cy argu es th at J. B. i s a p erpetr ator by o miss ion. It it s m e mo randu m , the A g e n c y detail s that J. B. was N . C.'s primary care take r fo r th e fir s t fiv e we e k s and th en s plit thi s rol e w ith J.C . fo r th e two w eek s p rio r t o Sep te mbe r 30th. D ef. Mem. at 6. TI 1e Agen cy al so asse rt s that N.C . was in J. B.> s cu re aroun d the clo ck e x c ep t fo r i nte n n itte nt p eri o d s o f ti me (e.g. 1 5~2 0 min u tes). I d. Wh ile r eco gniz in g that J. B . may no t have i n fli cted th e i njuries 

### to N. C . , th e Ag ency ar gu es th at J .B . s ho ul d have r ecog ni z ed the rib i njuri es N .C . suffe red w ithin th at p eri od o f tim e. Id . Th e Ag e n cy b e li e v es th at J . B. 's a ction s in taking the c hild to th e phys ic ian o n Septe mber 3 0th may " mitig ate som e co nc ern as to h er culp abili ty , [but] it do e s n o t full y exp l ain h ow s h e wo uld h av e be e n co mpl e te l y u naware of th e tot ality o f s i g n i fi can t inju ries this c hi ld s u ff e re d. " I d . T h e Ag ency als o p o ints out th at s h e ha s n o ex planati o n for th e s e ri b injuries, m e an i n g th at "s he e i th er cau sed tho se i njuri es h er sel f an d is l yi ng> o r she kn e w about th e i njuri es wh en they o ccu rre d at the h an d s o f [J .C .] and di d n o t inform an yo ne. " Id . at 6

- 7 .23 T he Court finds th at J.B . is a perp e trator by failing to act when N.C. s uffered the injuri es. While w e und e r s tand that J.B. took the child to the do c tor on thre e separate o c casions betw e en September 2 2 nd and September 30th, the fact remains th at J.B . wa s primarily resp o n s ible for N.C. for fiv e wee ks dating fr o m August JOth. The te stimony of Dr. Clarke, which this Court finds cre dible in all respects, es tablish e s that N .C . 's h ealing rib fractures w ere at least thre e week s old . Therefore, N.C. suffere d those injuries while und er J.B. 's almost tot al c are. Ev en if J.B . left N.C. in J. C.' s c are for a pe rio d of thirty minutes, this Court bel i eves that N . C. would outw ardly manifest sy mpt o ms of pain throughout that time fr ame. We ba se thi s upon the e x pert tes timony of both physicians, who indicated that the rib injuri es would cause a s ubstantial amount of p ain an d would outwardly manifest that pain such that a reasonabl e adult would know that the child w as injured. Regardle ss of Dr. C larke ' s in abili ty to pl a ce a spe c ific time window o n th at pai n manifestation, this Court d oes not beli ev e that J.B. would not have see n any signs or s ymptoms of th e rib in juries. Both physi ci an s indicated th at a gre at d eal of forc e is re quired to inflict these injuri es , and th at the s e injuries w o uld c ause a lot o f pain, distress , and crying. The Court does not a ccept that N . C. o nly o utwardly manifeste d the pain of these injuries for brief periods of time-e as suming even th at th e abu s e occurred right after J . B. le ft the home , the seve rity o f thes e injurie s mu s t hav e be e n palpable upon J.B . 's return. In thi s re g ard, w e draw a corollary between the c as e at b ar and /11 

### re L. V. , a re ce nt S up erio r Court decisi o n . In L. V., the subje c t child s uff ere d a n umbe r of Iife-thre atening injuri es, i n c luding " at least tw enty-three rib fracture s, tw o or thre e vertebrae fr a cture s, tw o p e lvic fractures, and a fr a cture to h er left fo ot. " 

### In re L. V. , 127 A.3d 831 , 8 35 (P a . S up er . 201 5 ) . In a dditi on, th e c hild also s uff ere d "an acute s ubdural h e morrhage , as w e l I 

# - ..---. - · ---- ---~- - - -- · - . . · - -·-· -· 

### · - - - - --24 In re L.V., 127 A.3d at 838. We discern no abuse of discretion. As discussed .. , [c [hild suffered numerous severe injuries which would not ordinarily be sustained but for the acts or omissions of [mjother or [fjather, While [c]hild was reportedly in the care of [f]ather when she sustained the injuries to her internal organs, some of [c]hild's rib fractures occurred between ten and fourteen days prior to [c]hild's hospitalization. There was no evidence presented by [mjother, or by anyone else, which demonstrated that [c]hild was in the care of [f{ather, rather than [mjother, at the time [cjhild's ribs were fractured. Thus, [m[other has failed to rebut the presumption that her actions, or failure to act, caused those injuries. Additionally, even if [m]other did not intentionally harm [cjhild, it is clear that she failed to stop [fjather's abuse of [c]hild, and failed to seek medical treatment for [cjhild's fractured ribs. Mother's omissions endangered [c]hild's 

### life, impaired [cjhild's functioning, and created an imminent risk of serious physical injury to [c ]hild , . . . The record supports the conclusion of the trial court that [m]other committed "child abuse" pursuant to Section 6303(b)(l). argument: no reason to know that abuse was taking place." Id. at 837. The L. V. Court rejected this "as the record indicates that Child's injuries were inflicted by [fjather, and [m]other had Before the Superior Court, mother argued that she had not committed child abuse be a perpetrator of child abuse. Id. at 834 .. child. Id. The trial court applied the Section 6381 (d) presumption and found Mother to Father initially stated that the child fell out of the bed, but later admitted that he struck the physicians that the child was in father's care that day, as she was at work. Id. at 833. presentation. Id. Upon presentation to the emergency department, the mother told fractures were healing and could have been inflicted ten to fourteen days before pneumothoraces." Id. 

## In particular, the record established that some of the child's rib as lacerations to her spleen and liver, pulmonary contusions to both lungs, and small25 The Court also discredits J.B. 's explanation as to the frenulum iniury. Both physicians testified that a burst frenulum would cause a substantial amount of bleeding, typically enough to trigger parents as to the serious nature of the injury. Based upon that testimony, this Court finds J.B. 's explanation that N.C. 's bleeding subsided by the time she got home to be entirely implausible. We also received testimony that this is an odd injury for an infant to suffer and could only be caused by substantial force, such as shoving a bard object into the infant's mouth. J.B. specifically testified that J.C. explained that he was removing a bottle from the infant's mouth and saw blood} replacing it with a cold bottle to stop the bleeding, These explanations are entirely inconsistent and this Court finds J.B.' s testimony self-serving. With respect to the liver laceration and "bucket-handle" factures, this Court cannot determine that J.B. would have been on notice as to these injuries. While both of these injuries arc fairly serious and both physicians testified that the child may have manifested some form of pain response, we cannot discern when these injuries occurred. Dr. Clarke specifically stated that she could not place a timeframe on the liver laceration and the only outward symptom would be fussiness. [N.T. Feb 12, p. 93). Thus, unlike the timeline on the rib fractures, this Court cannot determine when N.C. would have manifested this pain-we believe it would be entirely speculative to find that J.B. knew

While a number of the injuries N.C. suffered are Jess severe that those suffered by the child in L. V., we find a similar circumstance in the case at bar regarding the rib fractures. This Court is not necessarily inferring that J.B. directly inflicted the abuse upon N.C. , however, N.C.'s healing rib fractures occurred at a time when J.B. cared for N.C. almost around-the-dock. Regardless of the other injuries, we believe on that basis alone that J.B. endangered N.C. by failing to seek medical treatment for N.C.'s fractured ribs.26 Based upon the testimony of both physicians, discussed 

### supra, we discount J.B.'s argument that she did not discover the injuries until September 30. As shown above regarding the child abuse findings, it is clear to both physicians that these injuries existed well before September 30. We also find Dr. Castel's explanation about the September 22 of these j njuries, Similarly, with respect to the "bucket-handle" fractures, while we find that they were caused by abuse, Dr. Clarke testified that the only outward manifestation of these injuries might have been swollen legs or crying when changing the child's diaper. [N.T. Feb 12 , p. 94). Dr. Clarke also determined that these injuries were likely acute or subacute and testified that a reasonable parent might only know of the injury after manipulating the child's legs. [N.T. Feb 12, p. 68-69, 95]. These injuries may not have manifested in such a manner as to alert J.B. that N.C.'s legs were injured, and therefore we cannot find that J.B. knew about and ignored these injuries. J.B. 's also argues that she cannot be a perpetrator because she took the child for medical care. On prior visits to Nason Hospital on September 22 and 24, J.B. brought N.C. in for a sick visit, where N.C. presented with bronchitis and issues similar to a common cold. [N.T. Feb 12, p. 42-44]. The evidence does not show that J.B. discussed any possible injuries with doctors on September 22 or 24, but J.B. explains that she did not discover these lumps until September 30. [N.T. Mar 7, p. 122-23]. When asked about these prior visits> Dr. Castel indicated that he did not conduct these examinations and did not know what examination those physicians performed. [N.T. Feb 12, p. 47]. Dr. Castel did, however, explain that these physicians, who saw N.C. for formula and respiratory issues, may only have listened to N.C. 's chest with a stethoscope rather than actually palpate the chest. [N.T. Feb 12, p. 45]. J.B. asserts that the doctors N.C. saw on September 22 and 24 manipulated his chest and found no lumps. [N.T. Mar 7, p. 119- 22).27

and 2 4 v is it s -ih e rec ord d oes not re fl e ct w h at examinati o n s these p hy s ician s performe d and th erefore we cann o t u n il ate rally d ecid e how th ese ph y s ic ian s e xamin ed N .C. n or a cc e pt J.B.'s te stim o n y that th ese p hy s ic ians ex amined N . C .' s ch es t. T h e re c o rds provi de d to D r . Ca s te l by N as on do not menti on any ty p e of c h e s t ex ami natio n pe rforme d on th ose d ates and o nly indi c ate findi ngs mad e w ith res p ec t l o th e formul a and c on ges tion i s s u e s . Th e a s serti on th at b ecau s e tw o p h ys i c i an s c ou l d n ot find N.C . 's i njuries s h ows that J . B. co ul d not h ave kn o wn of th ese injuries i s t oo sp ecu lati ve an inf ere n c e fo r this C ou rt, E v e n if th i s Cou rt w ere pro vided a clearer record regardi ng th e s e p ri or vi si t s , it wo u l d b e o f no m o m e nt- we es t ablish J .B. as a perpetrator o f abu s e base d up o n h e r ne arly aroun d- the -cl ock c are of N.C . at the tim e when h e s uff ere d th e ri b injuri es . Th e fa ct that two physicians may n o t hav e see n th ese inju ri es does no t ch an ge the fa ct th at N. C. su ff

ered th e s e injuri es and, w he n th e y o c curre d, he w as in J .B. ' s n earl y t o tal c are . Fi n ally , we mu s t addr e s s J.B . 's last argument , which i s in th e nature of h er pers o n ali ty and a cti o n s toward s the c hild. W e re cogni z e that J . B. i s makin g eff orts to re unite w ith N . C . and h as av ail ed h er se lf o f mu ltipl e p ro gr ams throu g h BCC YF t o ass i st i n th at p ro c e s s . J . B. as ks th e Court t o c o ns i d er thi s behavi or in light o f th e s eri o u s alleg atio ns l e v ie d ag ai n s t h er , arguin g that her c urre nt b e h avior ex emplifi e s h er co mmitment t o h er chil dre n an d th at h er care for h er chil dre n s h ows that s hould co uld not b e a perpe trat o r o f abu se . J . B . Brief at 5

- 6 1 8 -9. While th is C o urt apprec i ate s th at J .B . i s m aki n g eff o rts t o r e u n ite w i th h e r c hildre n, this p res ent b ehavi o r cannot m ask the evid ence pre se nte d be fo re thi s Court. T he se see ming l y miti gati n g p o s t- in ci d e nce c irc um s t an ce s th at J.B. asks th e C ourt t o acc ep t d ocs n o t c han g e the te s tim ony o f tw o ex p ert s re gardi n g th e abu s e thi s c hil d28

suffered. Our findings of child abuse and J.B. and J.C. as perpetrators are made bas e d upon the factual record placed before the Court In light of the foregoing, we find that J.B. failed to rebut the presumption enacted by Section 638l(d) and thus find that J.B. perpetrated abuse against N.C. by omission. As discussed 

### supra with respect to J.C., we are not required to find by clear an d convincing evidence that J.B. perpetrated the abuse-rather, the presumption of Section 638 l ( d) requires 

### us to examine whether evidence presented by J.B. sufficiently rebuts the presumption. Based upon th e large amount of time J.B. spent with N.C. in the first five weeks of his life and the co-parenting J.B. and J.C. provided up until the visit to Dr. Castel is office, we find that J.B. perpetrated the abuse either by inflicting said abuse upon N.C. or failing to prevent the same. The evidence presented in J.B.'s defense in no way aligns with any of either physicians> opinions nor does it present a logical reason for J.B. 's alleged failure lo recognize these injuries, D. Conclusion Jn conclusion, the Court finds that N.C. suffered child abuse at the hands of his parents, J.C. and J.B. The testimony of both physicians clearly established that N.C. suffered some form of child abuse resulting in injury, which raises a presumption that N.C. 's parents, J.C. and J.B.. abused N.C. J.C. failed to rebut this presumption, as all of his explanations for the child's injuries were entirely inconsistent with both experts' testimony and his explanations to Dr. Clarke lacked any type of internal consistency with J.B.'s limited explanations. J.B. similarly failed to rebut this presumption. With respect to the rib injuries, J.B. was N.C.'s nearly around-the-clock caretaker when N.C. suffered the first rib injuries and indicated that she was unaware of the injuries. In regard to the lip injury, J.B. presented a story entirely inconsistent with J.C.'s explanation to Dr. Clarke. While the Court cannot impute knowledge ofN.C.'s other injuries upon J.B. , we29

find J .B/ s lack of response to the db and lip injuries sufficient to sustain a finding that J.B. perpetrated the abuse upon N.C. II. l\10TTON FOR AGGRAVATED CIRCUMSTANCES In light of our finding regarding child abuse, this Court must now determine the merits of the Agency's Motion for Aggravated Circumstances against J.C. as a perpetrator of abuse and J.B. for aggravated physical neglect The Agency argues that aggravated circumstances are appropriate based upon the injuries N.C. suffered. In support, the Agency supports the L.1~ case, discussed supra, for the proposition that N.C. suffered injuries consistent with serious bodily injury and that aggravated circumstances exist as to J.C. and J.B. The Agency points to N.C.'s multiple Injuries, as well as the fact that J.B. failed to "protect the child from the father and ... fail[ed] to seek medical treatment when she became aware of the older rib injuries during the time she was with the child almost constantly." Agency Brief at 7. Both LB. and J.C. present no position relative to this motion. However, based upon J.B. 's opposition to a finding of child abuse, the Court believes that J.B. is also in opposition to a finding of aggravated circumstances. The Court finds that aggravated circumstances do not exist. We agree with the Agency's position, but we decline to find that the injuries constituted a life-threatening condition or that the injuries have impaired N.C. Both physicians testified that N.C, is healing well, and Dr. Castel specifically stated that bis follow up showed no developmental delays. Based upon 

### ow· reading of L. V. and other cases, aggravated circumstances in physical abuse cases are reserved for, consistent with the statute, injuries that are life-threatening or substantial impair the child's functioning. Compare In re R.P., 957 A.2d 1205 (Pa. Super. 2008) (finding aggravated circumstances where expert testified that child's condition was life threatening with one hundred bruises, skull30

fr a ctu re, h ip frac ture, an d a b il ateral s ub du ral hc m atom a) wi th B.J .S. 111 the Inte res t o

f J.R . , 2 013 WL l 1 2 3 8 1 86 ( Pa. S u p er. 2 01 3 ) ( de cli ni n g aggravated c irc um s tan ce s w h ere r ev i ew o f i nj uri es , i nc ludin g b ru isi ng on h ea d and nec k , fr a ctu re o f left le g , an d fr ac ture o f rib which we re n ot p erman en tly disfi g uri ng an d di d n o t cau s e pro tec ted l os s or impairme nt o f bo dil y m e mber did n ot cons ti tu te " s eri ous bodil y in ju ry") . W e b e li eve th at , in th e co nt e xt o f aggr avate d circumstan c e s, th e s tatute and d ec i s i ons o f o ur Sup eri or C ou rt re quire eith er s ev erity o f inj uri es th at put th e child' s li fe in j eo pardy or i nj uries whi c h i mpair o r cau se p ro tracted l os s. In th e case at bar, n either p h ysi cian te stifie d th at th ese in j uries were life threate n ing nor did ei ther p h ys i c ian tes tify that these in juri es re s ult e d i n pro tracte d l o s s o r impai rm e n t of any ap p endage or or g an . With out any furth er indi cati on th at N. C .' s i nju ri e s we re li fe-threateni ng or resul te d in co ntinu i n g impairme n t, we are constrain ed to fi nd th at a g grav ate d ci rc u m s tan c es do n ot ex i s t. I n li g ht o f 

### th e fo rego in g opi n io n, we no w e n ter th e fo ll o win g Order : · ·· - - · - -- - -- -- - - ............ 

# - - ---• .,. - t' l BY TH E COURT: 2 . Fo r th e reaso ns stated i n o ur afo resai d Op ini o n, we den y the A g en c y' s Motion for Findin g o f Agg ravated Ci rc umst an c es alleg e d ag ai n s t bo th pare n t s . 1 . Th e c o urt c o nfirm s th e fi ndin g o f c hild abus e in relati o n to C hildlin e #74 4 6 6 0 5 (a s s e t f

o rth in th e CY4 8 F orm a dmitte d into th e re co rd during th e M ar c h 7 , 2016 heari n g a s P e titi o n e r 's Exhibit " J "). As a resu lt, th e Age n c y 's indicated rep o rt is "founded " a s to b o th pare nt s , J. C . an d J.B., whi c h ari s e s out o f th e sam e se t o f fa c t s and c i rc u ms t anc es as th e A g en c y 's indi c ate d fi n d ing relati ve to C hildline #7446 6 05. I I 

### I 

# I 

# I I I A N D NOW , thi s 

# 3o th d ay of J un e , 201 6, c on s i s te n t with th e fo re go in g Opini o n , it i s h ereby ORD E RED, DIREC T ED and DECRE E D a s folJ o w s: ORDER C O UNS E L F O R B C C YF

C O U N S E L F O R MOTHE R COUNS E L FO R F A T H E R GUARDIAN AD LI T EM J U S T IN WIT T , E S QUI RE T RA CI L. NAUGLE , ESQUI RE A SH L AN C LARK, E S Q U IRE TYL E R A. R OWLES, E SQUIRE PRE S IDIN G JUDG E HO N. TIMOTH Y M . SULLIVAN FI D# 07- FN-0006 5-2 015 C P- 07

- D P -120-2015 IN T H E IN TE RE ST O F N . C., a mi n o r JN T H E C O U RT O F COMMON P LE AS O F BLAIR CO UNTY, PE NN S Y L VANIA