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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

J.C. (Father)1and 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 justifying 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

- 2 -

consequences of such a finding and the lack of evidence that she 

had knowledge of such abuse[?] 

Mother’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 

determinations of the trial court if they are supported by the 

record, but does not require the appellate court to accept the 

lower court’s inferences or conclusions of law. Accordingly, we 

review for an abuse of discretion. 

In re L.V., 127 A.3d 831, 834 (Pa. Super. 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: 2/9/2017
I 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 

-HON. TIMOTHY M. SULLIVAN PRESIDING JUDGE 

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 AM
2 

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 severity 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 HIS1'0RY2 

- - ---~~----~------ -·---- 
3 

When asked about these injuries, 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. We 
4 

23 Pa. C.S.A. § 6303{b,l) (in part). 

* 

(5) Creating a reasonable likelihood of bodily injury 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 ("CPSL11). 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-Litem, 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 or 
6 

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. 

* * * * 

(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. 

* * 

"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 , . , 

* * 

(e) Permanency hearings- 

-----~~-~--------·--- 
7 

37-38, 40]. He also testified that the callouses became so thick that they lifted 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 

DISCUSSION 
8 

Dr. Clarke also found multiple rib fractures on N.C. in various slates of healing, 

some having calloused into hard lumps and others presenting without callouses. [N.T. 

Feb J 2, p. 62-63]. Dr. Clarke specifically testified that the forces necessary to create 

these types of fractures are "well out of the realm of reasonable in caring for an infant" 

and could not have occurred through normal handling. {N.T. Feb 12, p. 79-81]. She also 

testified that these injuries would have caused the child substantial pain and N .C. would 

have manifested the pain in such a manner as to let any reasonable person know that he 

was significantly injured. [N.T. Feb 12, p. 84-85]. We note that Dr. Clarke could not put 

a timeframe on how long N.C. might have manifested this pain. Id. However, Dr. Clarke 

was able to determine that N.C. 's healing fractures were at least three weeks old and his 

acute fractures occurred less than a week before the examination. [N.T. Feb J 2, p. 63]. 

X-ray radiographs taken by both Dr. Castel and Dr. Clarke also confirmed the 

presence of fractures. Dr. Castel and his coordinating radiologist found five total 

fractures on N.C., noting multiple areas of callous formation around multiple ribs. (N.T. 

Feb 12, p. 33-34, 62]. Dr. Clarke found three healing fractures on N.C.>s right side, as 

well as five acute fractures=-one on his right side and four on his left side. (N.T. Feb 12, 

p. 62). Dr. Castel's radiologist specifically remarked that these injuries were "highly 

suspicious for non-accidental trauma." (N.T. Feb 12, p. 33]. 

skin. [N. T. Feb 12, p. 35). Dr. Castel testified that he had previously only seen such 

fractures after performing cardiac pulmonary resuscitation on infants. [N.T. Feb 12, p. 

34-35]. 
9 

while J.B. worked. [N.T. Mar 7, p. l28-33J. The only other persons who were around 

watch N.C. during the clay while J.C. worked and J.C. would watch N.C. during the night 

old-J.B. and J.C. then transitioned into a twelve hour schedule, wherein J.B. would 

before this Court that she and J.C. were N.C.,s primary caretakers lN.T. Mar 7, p. 131- 

. . we..~--k;, 33). J.B. cared for N.C. nearly around-the-clock from birth until N.C. was five ..- 

injuries based upon both the physicians' testimony and J.B.'s testimony. J.B. testified 

This Court notes the absence of a reasonable explanation regarding N .C.' s severe 

the force necessary to generate db fractures. Id. 

also opined that the amount of force generated by such an incident would be well short of 

In this instance, Dr. Clarke found it unusual that J.C. would catch N.C. by his chest and 

managed to catch N.C. by his chest before N.C. hit the floor. [N.T. Feb J 2, p. 63-64, 75]. 

explanation proffered by J.C., wherein N.C. allegedly fell from J.C/s a1111s and J.C. 

produce. [N.T. Feb 12, p. 34, 62-64]. Dr. Clarke took particular exception to another 

required to generate a rib fracture is much greater than either of the incidents could 

However, both physicians repeatedly stated that the amount of pressure and force 

N.C. 's chest to help him clear thick mucosa and formula. [N.T. Feb 12, p. 76-78]. 

off a couch onto a hardwood floor recently and also that he heard a pop after pushing on 

provided by J.C. and J.B. When told about the rib fractures, J.C. explained that N.C. fell 

We also note that Dr. Castel and Dr. Clarke discounted all of the· explanations 

[N.T. Feb 12, p. 63-64]. 

mechanism, all well outside what could be considered normal handling of an infant. 

these fractures may have occurred by direct trauma or by a squeezing/compression 

result of child abuse. [N.T. Feb 12, p. 40, 62-63, 85]. Dr. Clarke specifically stated that 

In both Dr. Castel and Dr. Clarke's professional opinions, these fractures were the 
10 

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 

shoving 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 different explanation of this injury. According to her1 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 received an 
4 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 the 
13 

osteogenesis imperfecta would result in mid-shaft diaphyseal fractures when the child 

begins to walk, unlike the end of shaft fractures seen on N.C. 's X~Ray radiographs. lN,T. 

Feb I 2: p. 82]. Dr. Clarke also found no other diagnostic symptoms for osteogenesis 

imperfecta. [N. T. Feb 12, p, 8 l -82]. Further, Dr. Clarke also noted that osteogenesis 

imperfecta would not explain the other injuries suffered by N.C. [N.T. Feb 12, p. 82-83]. 

This Court finds that N.C.>s leg injuries were a result of child abuse. We find Dr. 

Clarke's testimony credible in all respects regarding the "bucket-handle" fractures, which 

me highly specific for child abuse and could not be explained by either parent. While 

J.B. argues that these injuries could have resulted from childbirth, there is no evidence 

· that n physician or other person pulled N.C.'s legs to assist in birth, We also note that 

N.C. would have been in substantial pain and any reasonable person should have known 

that N.C. was injured. Based upon the testimony p,resented, this Court finds that N.C. 's 

leg iniul'ies constitute child abuse under the CPSL. 

4. Liver Laceration 

Dr. Clarke also found, through a computerized tomography (CT) scan, that N.C. 

suffered a liver laceration. [N.T. Feb 12, p. 64]. In her medical opinion, the severity of 

the laceration was a Grade Two out of four. [N.T. Feb 12, p. 65]. This finding alarmed 

Dr. Clarke because N.C. had no history of significant accidental trauma aud this injury is 

typically caused by blunt force trauma to the beJly. Id. Dr. Clarke testified that punching 

or other unilateral forces typically cannot cause this type of injury-instead, the force is 

applied as stomping or another really significant force where the child is on a hard 

surface. [N.T. Feb 12, p. 65-66). Dr. Clarke also stated that the only symptom N.C. 

would have exhibited is fussiness and the same trauma that caused the rib fractures could 

have cause the liver laceration. [N.T. Feb 12, p. 93-94]. However, Dr. Clarke cautioned 

that the rib fracture alone could not have caused the laceration. [N.T. Feb 12, p. 94]. In 
14 

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 entirely 
15 

inconsistent with the expert findings and fail to explain any of the injuries N.C. suffered. 

The Court finds that the expert findings and opinions, in combination with the lack of any 

reasonable explanation by the parents, constitutes clear and convincing evidence that 

N.C. 's injuries are the result of child abuse. 

B. J.C. As An Alleged Pe~·pett·ator 

This Court must now determine whether J.C. perpetrated the abuse against N.C. 

We find, preliminarily, that because (I) J.C. is one of N.C. 's parents and (2) 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 prima facie 

evidence of child abuse by J.C. This presumption is based upon J.B. 's admission that she 

and J.C. were N.C.'s primary caretakers from birth until this Court transferred custody to 

the Agency. We also find that the second prong is met because of N.C. 's young age, the 

lack of other persons present who would have access to him, and the severity of the 

injuries sustained=-in essence, the Court finds that either J.B. or J.C. inflicted the abuse 

upon N.C. or failed to protect him from the same. See In re L.Z., 111 A.3d 1164, 1185- 

86 (Pa. 2015) (finding that medical evidence of penile laceration, cheek bruising, and 

severe diaper rash and yeast infection "demonstrated that [c]hild's injuries were neither 

accidental nor self-inflicted and because was onJy in the care of [m]other and [a]unt, the 

injuries were shown to be a "of such a nature es 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'"). Therefore, the burden shifts from the Agency to J.C., who 

must present evidence which rebuts this presumption. 

_ .... ........._ .. -~-- ... . __ ... ____._ ... ~--- 
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 incident 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 AM
17 

including the newer rib fractures, face/lip bruising, frenulum injury, or the "buckethandle" fractures. (N.'f. Feb 12, p. 75-76]. Dr. Clarke also indicated that grabbing a 

child around the chest is a strange way to catch a falling child. Id. 

J.C. also explained to Dr. Clarke that he recently pushed on N.C.'s chest to help 

N.C. breathe and heard a pop. [N.T. Feb 12, p. 76-77]. According to J.C., be pushed on 

the child's chest to help him remove some formula and thick mucosa that built up during 

a recent respiratory infection. ld. J.C. stated that the child seemed more content 

afterward. (N.T. Feb 12, p. 77]. J.C. could not tell Dr. Clarke how hard he was pushing, 

but stated that he believed he was not using a lot of force and did not believe that the pop 

represented a broken rib. [N.T. Feb 12, p. 77-78J. Dr. Clarke also discounted this 

explanation as unreasonable and outside the normal care or handling of a child. 

Finally, J.C. explained to Dr. Clarke that he and J.B. recently had difficulty 

removing N.C. into his car seat. [N.T. Feb 12, p. 78-79]. According to J.C., he had to 

push on N.C. in order to remove N.C. from the vehicle. Id. J.B. concurred with J.C. and 

told Dr. Clarke how it was to remove N.C. from the seat. [N.T. Feb 12, p. 79]. Dr. 

Clarke disagreed with this explanation as well, as placing and removing a child from a 

cur seat "should not cause any kind of injuries, Jet alone broken bones." Id. 

With respect to all of these explanations, Dr. Clarke indicated that J.B. appeared 

to not know about the history of these incidents except for the car seat issue and the 

incident with the couch. [N.T. Feb 12, p. 96-97, 99]. In her medical opinion, these 

parents could not explain the injuries to N.C., none of the explanations were reasonable 

and could not happen with normal care or handling of a child. (N.T. Feb 12, p. 79-81]. 

Further, in the totality of the circumstances, Dr. Clarke opined that a reasonable person 

would have known that N.C. was hurt when any one of these injuries occurred. [N.T. 

Feb 12, 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. 
20 

inflicted the injury or failed in their duty to protect the child," Id. at 1185, 

hold parents "accountable for the care and protection of the child whether they actually 

omissions of the parent or responsible person." Id. Therefore, this Court is bound to 

person, s physical presence at the time of the injury, but rather extends to both acts and 

at 1184. The statute "neither mentions nor focuses upon the parent or responsible 

"responsible for their children, absent extenuating circumstances." !11 re L.Z., 111 A.3d 

Jn this context, the law of this Commonwealth makes parents continuously 

In re L.Z., 111 A.3d at 1178 (quoting /11 the 

Interest of J.R.W., 631 · A.2d 1019, 1024 

(Pa. Super. 1993)), 

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, 

is all that is required . . . . 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. 

presumption may be raised in this context: 

2~ 15). Our Supreme Court quoted an earlier decision of the Superior Court as to why the 

was in the parent's care at the time of the injury. !11 re L.Z., 111 A.3d 1164, 1176 (Pa. 

the Section 638 l presumption in cases where the record fails to establish that the child 

As a preliminary matter, we note that Pennsylvania Jaw allows this Court to raise 

------~-- 
21 

swollen or bruised. (N.T. Mar. 7, p. 134]. J.B. also points to the testimony of Dr. Clarke, 

bleeding had subsided. [N.T. Mar. 7, p, 134). She further states that N.C.'s lip was not 

(N.T. Mar. 7, p. 134]. J.B. then states that she drove straight home to find that the 

injury, J.B. states that J.C. pulled a bottle from N.C. 's mouth and saw some bleeding. 

leg fractures, or liver laceration. (N.T. Mar. 7, p. 137]. With respect to the frenulum 

she only knew about N.C. 's frenulum injury and had no knowledge as to the rib fractures, 

7, p. 126]. However, J.B. argues that she did not perpetrate this abuse. J.B. asserts that 

J.B. agrees with the Agency's position that N .C. suffered child abuse. (N. T. Mar. 

111 re L.Z., 111 A.3d at 1185 (emphasis added). 

[Tjhe Legislature balanced the presumption of Section 

638l(d) by making it rebuttable as it merely establishes 

"pritna fade evidence" that the parent perpetrated the 

abuse, 23 Pa.C.S. § 6381 (d). As commonly 

understood,primc, facte evidence. is "[sjuch 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." Black's Law Dictionary 825 (6th 

ed. abridged 1991 ). Accordingly, evidence that n child 

suffered injury Iha! would not ordinarily be sustained but 

for the nets 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 lo 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 pr/11111 [acie evidence presented by the CYS agency 

and the rebuttal of the parent or responsible person. 

However, this presumption is rcbuttable through various types of evidence: 

····-- --- 
22 

who could not estimate a timeframe in which N.C. would manifest the pain of these 

injuries. 

J.B. also argues that she cannot be a perpetrator because she took N.C. for 

medical care whenever the child appeared HJ. (N.T. Mar. 7> p. 120-22). In support of this 

argument, J.B. points to doctor visits on September 22nd and September 24th, when 

neither doctor saw any marks> bruises, or callouses on N.C. Id. She also states that she 

did not speak with J.C. about any of the injuries before the child abuse consult with Dr. 

Clarke on October 1st. [N.T. Mar. 7> p. 124]. J.B. also points to periods of time where 

J.C. and N.C. were alone, stating that the abuse may_ have occurred during those periods 

of time. 

The Agency argues that J.B. is a perpetrator by omission. It its memorandum, the 

Agency details that J.B. was N.C.'s primary caretaker for the first five weeks and then 

split this role with J.C. for the two weeks prior to September 30th. Def. Mem. at 6. TI1e 

Agency also asserts that N.C. was in J.B.>s cure around the clock except for intennittent 

periods of time (e.g. 15~20 minutes). Id. While recognizing that J.B. may not have 

inflicted the injuries to N.C., the Agency argues that J.B. should have recognized the rib 

injuries N.C. suffered within that period of time. Id. The Agency believes that J.B.'s 

actions in taking the child to the physician on September 30th may "mitigate some 

concern as to her culpability, [but] it does not fully explain how she would have been 

completely unaware of the totality of significant injuries this child suffered." Id. The 

Agency also points out that she has no explanation for these rib injuries, meaning that 

"she either caused those injuries herself and is lying> or she knew about the injuries when 

they occurred at the hands of [J.C.] and did not inform anyone." Id. at 6-7. 
23 

The Court finds that J.B. is a perpetrator by failing to act when N.C. suffered the 

injuries. While we understand that J.B. took the child to the doctor on three separate 

occasions between September 22nd and September 30th, the fact remains that J.B. was 

primarily responsible for N.C. for five weeks dating from August JOth. The testimony of 

Dr. Clarke, which this Court finds credible in all respects, establishes that N .C. 's healing 

rib fractures were at least three weeks old. Therefore, N.C. suffered those injuries while 

under J.B. 's almost total care. 

Even if J.B. left N.C. in J.C.'s care for a period of thirty minutes, this Court 

believes that N.C. would outwardly manifest symptoms of pain throughout that time 

frame. We base this upon the expert testimony of both physicians, who indicated that the 

rib injuries would cause a substantial amount of pain and would outwardly manifest that 

pain such that a reasonable adult would know that the child was injured. Regardless of 

Dr. Clarke's inability to place a specific time window on that pain manifestation, this 

Court does not believe that J.B. would not have seen any signs or symptoms of the rib 

injuries. Both physicians indicated that a great deal of force is required to inflict these 

injuries, and that these injuries would cause a lot of pain, distress, and crying. The Court 

does not accept that N.C. only outwardly manifested the pain of these injuries for brief 

periods of time-eassuming even that the abuse occurred right after J.B. left the home, the 

severity of these injuries must have been palpable upon J.B. 's return. 

In this regard, we draw a corollary between the case at bar and /11 re L. V., a recent 

Superior Court decision. In L. V., the subject child suffered a number of Iife-threatening 

injuries, including "at least twenty-three rib fractures, two or three vertebrae fractures, 

two pelvic fractures, and a fracture to her left foot." In re L. V., 127 A.3d 831, 835 (Pa. 

Super. 2015). In addition, the child also suffered "an acute subdural hemorrhage, as wel 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 small 
25 

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 24 visits-ihe record does not reflect what examinations these physicians performed 

and therefore we cannot unilaterally decide how these physicians examined N .C. nor 

accept J.B.'s testimony that these physicians examined N.C.'s chest. The records 

provided to Dr. Castel by Nason do not mention any type of chest examination performed 

on those dates and only indicate findings made with respect lo the formula and 

congestion issues. The assertion that because two physicians could not find N.C. 's 

injuries shows that J.B. could not have known of these injuries is too speculative an 

inference for this Court, Even if this Court were provided a clearer record regarding 

these prior visits, it would be of no moment-we establish J.B. as a perpetrator of abuse 

based upon her nearly around-the-clock care of N.C. at the time when he suffered the rib 

injuries. The fact that two physicians may not have seen these injuries does not change 

the fact that N.C. suffered these injuries and, when they occurred, he was in J.B. 's nearly 

total care. 

Finally, we must address J.B. 's last argument, which is in the nature of her 

personality and actions towards the child. We recognize that J.B. is making efforts to 

reunite with N.C. and has availed herself of multiple programs through BCCYF to assist 

in that process. J.B. asks the Court to consider this behavior in light of the serious 

allegations levied against her, arguing that her current behavior exemplifies her 

commitment to her children and that her care for her children shows that should could not 

be a perpetrator of abuse. J.B. Brief at 5-61 8-9. 

While this Court appreciates that J.B. is making efforts to reunite with her 

children, this present behavior cannot mask the evidence presented before this Court. 

These seemingly mitigating post-incidence circumstances that J.B. asks the Court to 

accept docs not change the testimony of two experts regarding the abuse this child 
28 

suffered. Our findings of child abuse and J.B. and J.C. as perpetrators are made based 

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 and 

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 the 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., we 
29 

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, skull 
30 

fracture, hip fracture, and a bilateral subdural hcmatoma) with B.J.S. 111 the Interest of 

J.R., 2013 WL l 1238186 (Pa. Super. 2013) (declining aggravated circumstances where 

review of injuries, including bruising on head and neck, fracture of left leg, and fracture 

of rib which were not permanently disfiguring and did not cause protected loss or 

impairment of bodily member did not constitute "serious bodily injury"). We believe 

that, in the context of aggravated circumstances, the statute and decisions of our Superior 

Court require either severity of injuries that put the child's life in jeopardy or injuries 

which impair or cause protracted loss. In the case at bar, neither physician testified that 

these injuries were life threatening nor did either physician testify that these injuries 

resulted in protracted loss or impairment of any appendage or organ. Without any further 

indication that N.C.'s injuries were life-threatening or resulted in continuing impairment, 

we are constrained to find that aggravated circumstances do not exist. 

In light of the foregoing opinion, we now enter the following Order: 

···--·---------- ............ ----- 
• .,.-t'l 

BY THE COURT: 

2. For the reasons stated in our aforesaid Opinion, we deny the Agency's 

Motion for Finding of Aggravated Circumstances alleged against both parents. 

1. The court confirms the finding of child abuse in relation to Childline 

#7446605 (as set forth in the CY48 Form admitted into the record during the March 7, 

2016 hearing as Petitioner's Exhibit "J "). As a result, the Agency's indicated report is 

"founded" as to both parents, J.C. and J.B., which arises out of the same set of facts and 

circumstances as the Agency's indicated finding relative to Childline #7446605. 

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AND NOW, this 3o th day of June, 2016, consistent with the foregoing 

Opinion, it is hereby ORDERED, DIRECTED and DECREED as folJows: 

ORDER 

COUNSEL FOR BCCYF 

COUNSEL FOR MOTHER 

COUNSEL FOR FATHER 

GUARDIAN AD LITEM 

JUSTIN WITT, ESQUIRE 

TRACI L. NAUGLE, ESQUIRE 

ASHLAN CLARK, ESQUIRE 

TYLER A. ROWLES, ESQUIRE 

HON. TIMOTHY M. SULLIVAN PRESIDING JUDGE 

FID#07-FN-00065-2015 

CP-07-DP-120-2015 

IN THE INTEREST OF 

N.C., a minor 

JN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA