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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

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

APPEAL OF: A.B., FATHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 121 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001613-2019

IN THE INTEREST OF: K.B., A MINOR

APPEAL OF: A.B., FATHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 127 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001614-2019

IN THE INTEREST OF: A.B., A MINOR

APPEAL OF: A.B., FATHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 129 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001615-2019

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

APPEAL OF: S.B., MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 124 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001613-2019

IN THE INTEREST OF: K.B., A MINOR :

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IN THE SUPERIOR COURT OF

PENNSYLVANIA
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APPEAL OF: S.B., MOTHER

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: No. 125 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001614-2019

IN THE INTEREST OF: A.B., A MINOR

APPEAL OF: S.B., MOTHER

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:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 128 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001615-2019

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

APPEAL OF: S.B., MOTHER

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 130 EDA 2020

Appeal from the Order Entered December 16, 2019

in the Court of Common Pleas of Philadelphia County 

Juvenile Division at No(s): CP-51-DP-0001612-2019

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

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED SEPTEMBER 02, 2020

Because I conclude that the trial court erred in finding Parents to be

perpetrators of child abuse against K.B., and would therefore grant relief on 

Parents’ first claim and reach the merits of Parents’ dependency and removal 

claims, I respectfully dissent. 

I begin with an overview of the applicable law regarding a finding of 

___________________

* Retired Senior Judge assigned to the Superior Court.
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child abuse.

[T]he requisite standard of proof for a finding of child abuse 

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

convincing evidence. In re L.Z., [] 111 A.3d 1164, 1174 ([Pa.] 

2015) (“a petitioning party must demonstrate the existence 

of child abuse by the clear and convincing evidence standard 

applicable to most dependency determinations, 42 Pa.C.S. 

§ 6341(c)”). Clear and convincing evidence is “evidence that is 

so clear, direct, weighty, and convincing as to enable the trier of 

fact to come to a clear conviction, without hesitancy, of the truth 

of the precise facts in issue.” G.V. v. Dep't of Pub. Welfare, []

91 A.3d 667, 672 ([Pa.] 2014). [H]owever, in certain situations, 

the identity of the abuser need only be established through 

prima facie evidence. In re L.Z., 111 A.3d at 1174. As an 

appellate court, we are required to accept the findings of fact 

and credibility determinations of the trial court, if they are 

supported by the record; however, we are not bound by the 

lower court’s inferences or conclusions of law. Id.

Interest of N.B.-A., 224 A.3d 661, 668 (Pa. 2020) (emphasis in original). 

Here, the trial court found Parents to be perpetrators of child abuse 

pursuant to 23 Pa.C.S. § 6303(b.1)(1), which provides that child abuse 

occurs by “intentionally, knowingly or recklessly... [c]ausing bodily injury to a 

child through any recent act or failure to act.” Specifically, the trial court

found Parents did not act intentionally or knowingly, but “there’s clear and 

convincing evidence that the parents recklessly committed child abuse.” 

N.T., 12/16/2019, at 184; see also id. at 182. Regarding recklessness, 

A person acts recklessly with respect to a material element of an 

offense when he consciously disregards a substantial and 

unjustifiable risk that the material element exists or will result 

from his conduct. The risk must be of such a nature and degree 

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

and the circumstances known to him, its disregard involves a 

gross deviation from the standard of conduct that a reasonable 

person would observe in the actor’s situation.
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18 Pa.C.S. § 302(b)(3); see also 23 Pa.C.S. § 6303(a) (adopting culpability 

definitions provided in 18 Pa.C.S. § 302).

In so finding, the trial court relied on the presumption of abuse in 23 

Pa.C.S. § 6381(d). 

[E]vidence that a child suffered injury that would not ordinarily 

be sustained but for the acts or omissions of the parent or 

responsible person is sufficient to establish that the parent or 

responsible person perpetrated that abuse unless the parent or 

responsible person rebuts the presumption. The parent or 

responsible person may present evidence demonstrating that 

they did not inflict the abuse, potentially by testifying that they 

gave responsibility for the child to another person about whom 

they had no reason to fear or perhaps that the injuries were 

accidental rather than abusive. The evaluation of the validity of 

the presumption would then rest with the trial court evaluating 

the credibility of the prima facie evidence presented by the CYS 

agency and the rebuttal of the parent or responsible person.

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

Specifically, the trial court held as follows.

Now, you would all agree and I’ll make it a finding of fact, 

that Dr. Brennan was pretty convincing and credible that this 

child sustained very substantial injuries, to the point that he 

would have been in a lot of pain.

Based on the testimony that I heard, I would find that 

there’s clear and convincing evidence that the parents recklessly 

committed child abuse. 

Now, that means, okay, it could be by omission and the 

presumption was not rebutted, okay? That being said, the goal is 

reunification.

N.T., 12/16/2019, at 184. In its Pa.R.A.P. 1925(a) opinion, the trial court 

further explained that neither Mother nor Father 
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intentionally or knowingly caused the unexplained injuries to 

Child[]. However, the trial court did find by clear and convincing 

evidence that Child[] suffered injuries of such a nature that were 

reckless and would ordinarily not be sustained or exist by reason 

of the acts or omissions of the parent. (N.T. 12/16/19, pgs. 179-

186). Mother [and Father were] unable to rebut the presumption 

that [they were two] of the perpetrators of child abuse. 

Consequently, the trial court did not err or abuse its discretion in 

finding child abuse as to Child[].

Trial Court Opinion, 3/5/2020, at 12.1 Notably, the trial court offered no 

analysis at the time of its holding or in its Pa.R.A.P. 1925(a) opinion as to 

how Mother and Father failed to rebut the presumption or how they met the 

standard for recklessness. 

There is no dispute that K.B. suffered bodily injury that was the result 

of an act or the failure to act by someone. However, as noted by Mother 

and Father, the trial court’s finding that K.B. was abused does not end the 

inquiry. See Mother’s Brief at 28; Father’s Brief at 28. According to 

Parents, “the evidence of record, in combination with the specific findings of 

the trial court and measured against the appropriate legal standards, does 

not support the trial court’s conclusion” that Parents committed the abuse by 

act or omission. Mother’s Brief at 28-29; Father’s Brief at 28-29. 

The Majority concludes that “Mother and Father failed to rebut the 

presumption by presenting evidence or testimony from themselves, Paternal 

Grandmother, or either babysitter establishing that K.B. was not in their care 

 

1 Because the trial court filed nearly identical opinions pursuant to Pa.R.A.P. 

1925(a) for both Father and Mother on March 5, 2020, I refer to them 

interchangeably.
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when he suffered his injuries, and that they had no reason to question their 

decision to leave [K.B.] in babysitters’ and Paternal Grandmother’s care.” 

Majority at 25 (footnote omitted). Importantly, in its recitation of the facts, 

the Majority significantly downplays Paternal Grandmother’s role during the 

relevant time period of Sunday evening to Monday morning,

2 stating merely 

 

2 This is assuming that the trial court did not err in finding that the injury 

occurred between late Sunday evening and early Monday morning. 

Babysitter #2 testified that when she arrived home K.B. was on his right 

side, which was not normal, and then when he woke up following her arrival, 

he gave an abnormal grunt cry, as if he were hurt. N.T., 12/16/2019, at 

147-48. The trial court discounted this testimony and concluded that the 

injury occurred sometime after 7:30 p.m. on Sunday because “if he’s 

sleeping on his right side, he could not have been hurt at that time[.]” N.T., 

12/16/2019, at 181. Notably, there was no evidence presented that K.B. 

suffered the two injuries simultaneously. Dr. Brennan testified that a child 

could sustain the shoulder injury, which is highly specific for an abusive 

injury, and not present any differently. Contrarily, the arm break, which is 

specific for a traumatic cause, would be exceptionally painful. Although the 

arm break injury could be due to accidental trauma, when coupled with the 

shoulder injury Dr. Brennan believed that to be less likely. Finally, Dr. 

Brennan testified splinting the arm would considerably reduce the amount of 

pain from the arm break, and that babies can sleep through these injuries 

eventually, but they would be uncomfortable and wake up if moved. See 

N.T., 11/8/2019, at 17-22, 31. Thus, it is entirely conceivable that K.B. 

sustained the shoulder injury prior to 7:30 p.m. on Sunday, while K.B. was 

in the sole care of Babysitter #1. Even if the trial court’s finding that the 

injury must have occurred between late Sunday night and early Monday 

morning is not supported by the evidence in the record because evidence 

shows it is just as likely that the injuries occurred sometime between 

Babysitter #1 sending photographs of K.B. to parents on Sunday and when 

K.B. woke up screaming on Monday morning, my analysis and conclusion 

would remain the same. As discussed infra, I would likewise conclude that 

Parents rebutted the presumption as K.B. was in the care of Babysitter # 1, 

and later Paternal Grandmother, and Parents had no reason to fear K.B. 

being taken care of by either caretaker. Nevertheless, Parents do not 

challenge the narrowed timeframe, and therefore I do not address this 

further. 
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that “Paternal Grandmother stays overnight on Sundays and sleeps on the 

same floor of the home as the twins.” Majority at 6 n.5. Respectfully, I 

disagree with the Majority’s characterization of Paternal Grandmother’s role 

during the relevant period and its conclusion that Mother and Father failed to 

rebut the presumption.

Like every Sunday evening, Paternal Grandmother took over childcare 

duties for K.B. and A.B. beginning at 8:00 p.m. from Babysitter #1. N.T., 

12/16/2019, at 23. On this particular Sunday, when Parents returned home 

at approximately 10:10 p.m., Paternal Grandmother was caring for K.B. and 

A.B. and Babysitter #2 was caring for C.B. and Y.C. Also present were 

Babysitter #2’s daughter and Babysitter #1, who had remained at the home 

until Mother and Father returned home so they could pay her. Babysitter #1 

left at approximately 10:20 p.m., Parents went to bed around 10:30 p.m. on 

the fourth floor, and Babysitter #2 left between 10:30 p.m. and 11:00 p.m. 

Id. at 26. Paternal Grandmother slept on the second floor and was the 

primary and direct caregiver for K.B. and A.B. overnight. Id. at 22-23, 35-

36, 62. According to Mother, K.B. and A.B. generally wake up to feed at

night, and Paternal Grandmother is responsible for caring for K.B. and A.B. 

overnight between Sundays and Mondays. Id. at 49. According to Parents, 

they did not see K.B. again until Monday morning, when it was apparent to 

them that he needed medical attention. They promptly took him to the 
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hospital where the family had received medical care, and which was across 

the street from his pediatrician. Id. at 27-29, 58, 72-73.

Thus, the uncontroverted evidence presented during the joint child 

abuse and dependency hearing on December 16, 2019, established that K.B. 

was not in Mother and Father’s care during the critical time period.

Additionally, Mother and Father testified that they had no reason to doubt 

the care provided by Paternal Grandmother, Babysitter #1, or Babysitter #2 

prior to K.B.’s injury. Id. at 33, 71. Therefore, Mother and Father 

presented testimony “that they gave responsibility for the child to another 

person about whom they had no reason to fear[,]” thereby rebutting the 

presumption. L.V., 127 A.3d at 837 (citation omitted). Accordingly, the 

trial court erred when it concluded that Mother and Father failed to rebut the 

presumption, and when it found that Mother and Father were perpetrators of 

child abuse based upon an application of the presumption. N.B.-A., 224 

A.3d at 668. Insofar as the trial court concluded that Mother and Father 

abused K.B. pursuant to 23 Pa.C.S. § 6303(b.1), without application of the 

presumption, this was error because DHS failed to establish by clear and 

convincing evidence that Mother and Father consciously disregarded a 

substantial and unjustifiable risk that K.B. would be abused by an act or 

failure to act. Accordingly, I would reverse the finding of child abuse against 

Mother and Father. 
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In so doing, I do not discount the severe injuries that K.B. suffered, or 

the clear and convincing evidence that someone abused this Child. I do not, 

however, believe that the record before me supports a finding that Mother 

and Father should be held responsible for this abuse. As our Supreme Court 

has explained, 

[a]lthough the tragic crime of sexual [or physical] abuse of 

a child may occur when a child is without proper parental 

supervision or care, it may also occur despite a parent’s best 

efforts to care for and supervise a child. Sadly, children are 

vulnerable to abuse when they are at day-care or in school; 

when they are involved in church, athletic, or other activities; 

and even when they are under the supervision of trusted friends 

or family. Yet, parents cannot be with their children every 

minute of every day, and the vast majority of children engage in 

the aforementioned activities without incident. Applying the 

[subs]ection 6381(d) presumption to cases such as the one 

before us, where DHS presented no evidence that Mother was or 

should have been aware that Stepbrother posed a risk to Child, 

or that he or anyone else was abusing Child, would essentially 

allow a parent to be deemed a perpetrator of child abuse by 

omission in every case where a child is abused, placing the 

burden on the parent to prove that they had no reason to 

believe that their child was at risk.

N.B.-A., 224 A.3d at 675 (emphasis in original). 

Finally, because the Majority concluded that the trial court did not err 

in finding Mother and Father to be the perpetrators of child abuse against 

K.B., it found Mother and Father’s challenges to the adjudication of 

dependency for the Children and removal of K.B. and A.B. moot. See 

Majority at 27. Because I would conclude that the trial court erred in finding 

Mother and Father to be perpetrators of abuse, I would not dismiss these 

challenges as moot and would instead review them on the merits.