J - A22040 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: B.L., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : APPEAL OF: J.L., FATHER : No. 215 MDA 2016

Appeal from the Dispositional Order December 31, 2015 In the Court of Common Pleas of Lancaster County Juvenile Division at No(s): CP - 36 - DP - 0000197 - 2015 BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 13, 2016 Appellant, J.L. (“Father”), challenges the orde r entered in the Lancaster County Court of Common Pleas, which adjudicated B.L. (“Child”) a dependent child and placed him in the custody of the Lancaster County Child and Youth Social Service Agency (“Agency”). We affirm. In its opinion, the trial cour t fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Father raises the following issues: DID THE COURT ERR IN FINDING THAT [CHILD] IS A VICTIM OF CHILD ABUSE AND THAT FATHER IS A PERPETRATOR OF ABUSE, AS FATHER DID NOT CAUSE THE INJURY TO [CHILD OR] KNOW THE CAUSE OF THE INJURY TO [CHILD], AND THERE IS NO EVIDENCE THAT FATHER ACTED INTENTIONALLY, KNOWINGLY OR RECKLESSLY CONCERNING HIS CHILD OR PLACING HIS CHILD AT RISK?J - A22040 - 16

- 2 - DID THE COURT ERR IN FINDING THAT [CHILD] IS A DEPENDENT CHILD, AS [CHILD], BOTH PARENTS, AND THE SIBLING OF [CHILD] WERE A FAMILY UNIT THAT WANTED FOR NOTHING AND POSED NO RISK TO THE HEALTH, SAFETY AND WELFARE OF [CHILD]? SHOULD THE COURT PROPERLY HAV E GIVEN CREDIBILITY TO THE TESTIMONY OF THE PARENTS AS OPPOSED TO THE TESTIMONY OF THE NURSE PRACTITIONER THAT TREATED [CHILD], AS THE TESTIMONY OF THE PARENTS WAS CONSISTENT, BUT DURING HER TESTIMONY THE NURSE PRACTITIONER OFFERED TWO DIFFERENT DESCRIPTIO NS OF THE SPECIFIC TREATMENT THAT SHE ATTEMPTED TO ADMINISTER TO [CHILD]? SHOULD THE COURT PROPERLY HAVE DISREGARDED THE TESTIMONY OF THE EXPERT WITNESS OFFERED BY THE AGENCY, AS THE OPINION OF THE EXPERT WITNESS WAS SPECULATIVE AND BASED UPON HOSPITAL RE CORDS OF DUBIOUS ACCURACY GIVEN THE INCONSISTENT TESTIMONY PRESENTED BY THE NURSE PRACTITIONER THAT TREATED [CHILD] AT THE HOSPITAL? (Father’s Brief at 8 - 9). The applicable scope and standard of review for dependency cases is as follows:

[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 A.B. , 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T. , 608 Pa. 9, 26 - 27, 9 A.3d 1179, 1190 (2010)).

We accord great weight to this function of the hearing judge b ecause [the court] is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before [the court]. Relying upon [the court’s]J - A22040 - 16

- 3 - unique posture, we will not overrule [its] findings if they are supported by competen t evidence. In re A.H. , 763 A.2d 873, 875 (Pa.Super. 2000) (quoting In re B.B. , 745 A.2d 620, 622 (Pa.Super. 1999)) (citations omitted). See also In re L.Z. , ___ Pa. ___, ___, 111 A.3d 1164, 1174 (2015) (reiterating standard of review in dependency cas es requires appellate court to accept trial court’s findings of fact and credibility determinations if record supports them, but appellate court is not required to accept trial court’s inferences or conclusions of law); In re D.P. , 972 A.2d 1221, 1225 (Pa. Super. 2009), appeal denied , 601 Pa. 702, 973 A.2d 1007 (2009) (stating applicable standard of review in dependency cases is “abuse of discretion”). Further, in placement and custody cases involving dependent children:

The trial court, not the appellate c ourt, is charged with the responsibilities of evaluating credibility of the witnesses and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the tr ial court’s findings are supported by competent evidence of record, we will affirm even if the record could also support an opposite result. In re S.G. , 922 A.2d 943, 947 (Pa.Super. 2007). The Child Protective Services Law defines “child abuse,” in relev ant part, as follows:

§ 6303. Definitions (b.1) Child abuse. -- The term “child abuse” shall mean intentionally, knowingly or recklessly doing any of the following:J - A22040 - 16

- 4 - (1) Causing bodily injury to a child through any recent act or failure to act.

* * * 23 Pa.C.S.A. § 6303(b.1)(1). The existence of “child abuse” pursuant to Section 6303(b.1) must be proven by clear and convincing evidence. In re L.Z., supra . Under certain circumstances, however, the identity of an abuser may be established by p rima facie evidence. Id. See also In re L.V. , 127 A.3d 831, 837 - 38 (Pa.Super. 2015).

[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 estab lish 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 testi fying 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 co urt 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.Z., supra at ___, 111 A.3d at 1185 (internal footnote omitted). Significantly, courts do not require a parent’s physical presence during the injury for “abuse” to occur. Id . at ___, 111 A.3d at 1184. To the contrary, our Supreme Court has stated, “parents are always responsible for their children, absent extenuating circumstances....” Id. Moreover, “[t] he inclusion of ‘omissions’ encompasses situations where the parent orJ - A22040 - 16

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responsible person is not present at the time of the injury but is nonetheless responsible due to his...failure to provide protection for the child.” Id . After a thorough review of th e record, the briefs of the parties, the applicable law, and the well - reasoned opinion of the Honorable Jay J. Hoberg, we conclude Father’s issues merit no relief. The trial court’s opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed April 4, 2016, at 1 - 11) (finding: (1) at time of injury, Child was six months old; on day of injury, Child was not moving his injured arm, necessitating visit to emergency room; nurse practitioner who treated Chi ld during emergency room visit initially believed injury was “nursemaid’s elbow” and performed reduction procedure; after reduction, Child was still unable to use arm and cried in pain when arm was moved; X - rays revealed Child had suffered spiral fracture of humerus, which is commonly caused by twisting; Dr. Kathryn Crowell, expert in pediatrics with specialty in child abuse, who evaluated Child, established Child’s injury caused Child significant, ongoing pain; spiral fracture caused Child substantial pain and impaired Child’s physical functioning; Father initially stated Child was fine before napping in Child’s swing on day of injury; Child’s parents later stated injury could have been caused by Child “dancing” with his four - year - old half - sister; Child’s p arents also stated nurse practitioner’s initial treatment caused Child’s injury; clear and convincing evidence demonstrated Child’s injury was result of child abuse; Dr. CrowellJ - A22040 - 16

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established that Child’s parents’ explanations for injury were implausible and would not have resulted in type of injury Child sustained; Dr. Crowell explained it was extremely unlikely that four - year - old half - sister could have caused Child’s injury; Child’s injury was present before treatment; Child’s parents’ explanations for inju ry were inconsistent, evasive, and lacked credibility; testimony of nurse practitioner and Dr. Crowell was credible and persuasive; Child’s injury satisfied definition of “child abuse”; Child’s parents were Child’s only caregivers in days leading up to Chi ld’s injury; prima facie evidence demonstrated Child’s parents were perpetrators of child abuse; Child’s parents’ explanations for Child’s injury were inconsistent with medical evidence; Child’s parents’ rebuttal did not outweigh totality of credible evide nce and medical records; (2) clear and convincing evidence showed Child was abused and without proper parental care; Child’s injury would not have occurred but for Child’s parents’ acts or omissions; Child, therefore, is dependent child; (3) exhibits on record, together with medical testimony, provided accurate timeline of events; testimony of nurse practitioner was credible and persuasive; nurse practitioner routinely and successfully performed treatment she performed on Child; Child’s paren ts’ testimony was evasive and lacked credibility; Child’s parents did not provide consistent explanation for Child’s injuries that fit with medical evidence; Child’s parents were unable to answer specific questions on when injury occurred; (4) Dr. Crowell conducted separate exam of Child, met with Child’s parents, orderedJ - A22040 - 16

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new X - rays, and reviewed records of Child’s emergency room visit; nurse practitioner’s testimony and emergency room records were credible; Dr. Crowell’s testimony established when she met with Child’s parents, they did not allege Child’s half - sister caused injury, but stated they believed nurse practitioner caused injury; Dr. Crowell testified nurse practitioner’s treatment would not have caused Child’s injury; totality of substantial medic al evidence concerning Child’s injuries was compelling and outweighed Child’s parents’ inconsistent and inconclusive testimony). The record supports the court’s dependency decision. Accordingly, we affirm on the basis of the trial court’s opinion. Ord er affirmed. J udgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/13/2016(")rfTl ::0 ;,:: 0 

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1 2 In their respecti ve State of Errors Complained of on Appeal, Parents both argue the same first two issues . The Court will address these together. Mother's issue three and Father's issues three and four are also similar and will be fully addressed together. I The Court issued a decision on the record following the December 21 , 2015, hearing and signed the Adjudication/Disposition Order the same day . However, the actual Order was not served on the partie s because of the Christmas holiday until December 31, 2015. Court erred in finding the child to be an abused child and that Parents were the perpetrators of Appeal address both Statements of Errors Complained of on Appeal , " Parents first argue that the asserts four issues in his 1 925(b) statement. The cases were consolidated and this Opinion Sur her 1925(b) statement. Father also filed a timely Notice of Appeal on February I , 2016 , and Mother filed a timely Notice of Appeal on February 1, 2016 1 , and asserts three issues in the child's primary caregivers, to be perpetrators of abuse against B.L. found B.L. to be both a victim of abuse and a dependent child, and found Mother and Father, as "Parents"), be found to be the perpetrators ofB.L.'s abuse. On December 21, 2015, the Court October 2, 2015, and December 21 , 2015 . The Agency requested that B . L. be found a dependent child and a victim of abuse . The Agency also requested that child's mother / ~ ~ 

### L .. (hereinafter "Mother"), and child's father, 

## .::J': Lo : (hereinafter "Father")(collectively " B.L ." ). B.L. is a minor male child who was born January . t · 201s. Hearings were held on (hereinafter "Agency " ) filed a Petition for Temporary Custody of 

# · B .. L~ n -u 0 ::ii:: c On October 1, 201 S, the Lancaster County Children and Youth Social Service ~entt ;< co r '(heti¥f nafter OPINION SUR APPEAL r )> 

### z CP-36-DP-197-201' V) -i ,.,.., ::::0 

### INRE: 

# B.. L, IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA JUVENILE COURT DIVISION Circulated 08/31/2016 04:12 PM2 3 "A nursemaid ' s elbow is a radial head subluxation of the radial bone at the blow joint, and so what can happen is it can just become subleuxed [sic] or partially disloc ated and the child won't move their arm . The kind of ju s t hold th e ir arm in an uncomfortable posi ti on until it is s uccessfully reduced . " N . T . at 10 : I 0-22. reduction procedure itself would not cause pain unless the child's elbow was , in fact , dislocated his arm was moved. Ms . Garber determined it was not a nursemaid's elbow because doing the After the reduction, B.L. still exhibited an inability to use his arm and cried in pain when attempted a reduction, the common treatment for that type of injury. Garber first believed the injury to be a nursemaid's elbow. 3 N . T. at 10:10-22 . Ms . Garber then Disposition Hearing , 12/21 / 15, 47 . Based on Mother's statements and her own observations , Ms . recommended Parents take B.L. to the ER. Notes of Testimon y (N.T . ), Adjudication and asleep, but had called B.L.'s pediatrician who suggested it might be a nursemaid's elbow and arm . Mother told the LOH Nurse Practitioner , Kara Garber, that she though his arm had fallen Department (LOH) with concerns when B . L. woke up from a nap and was not moving his right its first report on the family . Parents arri v ed at Lancaster General Hospital's Emergency The relevant facts are summarized as follows. On August 2, 2015, the Agency received properly disregard the testimony of an expert witness who reviewed the LOH records . rather than assigning credibility to Parents' testimony. Father also argues that the Court failed to Father argues that the Court improperly assigned credibility to the medical and expert testimony records because that evidence was inconsistent and was of qu estionable accuracy. Likewise, Mother then argues that the Court erred in relying on the medical testimony and hospital environment. B.L. to be a dependent child because Mother and Father provided a safe, clean and loving or recklessly placed B.L. at risk for harm. Next, Parents argue that the Court erred in finding when the child was injured and , therefore, there is no evi d ence that they intentionally, knowingly3

the caseworker fo r the injury : Grandparents. Following the implementation of the FSP , Pare nts pro v ided tw o explan ati o n s t o The children were t o r es id e with P atern al cont a ct b e tween Parents and B.L. The A g en c y then implemented a F amil y Safety Plan ( F SP ) prohib i tin g an y un s up erv i se d · - - co-mrur. D r. I> ~isc lrarge"d 

### and · s- e m 

### B: t : · trom-e wtm-P ar e nts . N -:1.ar2 · s -;- - - - - - - - - -- - - · -- - - - N . T . at 4 9 : 23-25 , 50 : 1

- 2 . B . L. w a s placed into a splin t and g iven T y lenol w ith codei ne for p ai n She ' s 

### four, it would be, you know, unusual for a four y ear old to inflict an y injury such 

### as that on another child. And again , it would dep e nd ho w she was holding hi s 

### arm , how he responded there after. He should have bee n immediatel y s ympt o matic thereafter. I think i t unlikely . in c onsistent with Child's injuries: with him while he was in his roll er chair. Ms. Garber testified that this e xplanation wa s who would take B . L.' s arm s and dan ce been caused b y B.L. ' s four year old half-sister , tr auma could have caused the injury. N.T. at 15-16. Mother then st ated the inj u ry might have leading up to the injury . Following the X-Rays, Ms . G arber once again asked the Parents i f an y Parents' testimony placed them 

### as the only two caregi v ers for the child for the day s Police began in v estigating the report . concerns of child abuse . N . T . at 15 . The concern was reported to ChildLine, and the Agen cy and injured his 

### arm , Ms . Garber consulted Dr . Dumomay, the superv ising 

### ER ph y sician, with mobile . N . T . at 56 : 6-9 . Because there was no explanation given for how the child could hav e A spiral ty pe fracture is considered suspicious if no trauma or fall is reported and the child is not area , of the same arm. Id . At th at time, Parents denied knowledge of any recent injury or tr aum a. that area . N.T. at 14. The X·Ray s also showed a possible fracture of the distal ulna , the wrist that B.L. had a spiral fracture of his right humerus , which is commonl y caus e d from a twisting of or child suffered some other injury. N.T. at 31. She then ordered XRay s . The X-ray s showed4

of the Agency on October 1, 2015. placement of B.L. to assure his safety and well-being . B.L. was placed into the physical custody and Father as perpetrators of abuse. At that time, the Agency petitioned the Court for emergency . . . . . . · · - - - - - - - - - - -- - · - - - - - · - - - - - ~ ·-- · -- -

On October 1, 2015, the Agency completed its abuse investigation, and indicated Mother and could not have caused the injury. N.T. at 39. testified that Father's demonstration also would not hav e resulted in the twis ting of the humerus Father then showed Dr. Crowell how Ms. Garber had performed the reduction . Dr . Crowell Dr. Crowell testified that she told Parents that a reduction would not cause a spiral fracture. time, Parents indicated that they believed Ms. Garber was responsible for B.L. 's spiral fracture. that when she met with Parents, they did not allege another child had caused the injury. At that Crowell determined that B . L.'s injury was consistent with phy s ical abuse . Dr . Crowell testified. reexamined B . L., reviewed the record from LGH and took another X-Ray of the injury. Dr. team evaluated B . L. in an outpatient setting , met with Parents, obtained medical history, expert in the field of pediatrics , with a specialty in the field of child abuse . Dr. Crowell and her a social worker and psychologist who see children for suspected abuse and neglec t. She is an Children's Hospital. Dr. Crowell works with a child protective team, a group of pediatricians and On September 17 , 2015 , B . L. was seen by Dr . Kathryn Crowell at Penn State Hershe y regarding B.L. 's injuries remained ongoing . 58 : 7-14. At the time of the Shelter Care hearing, the criminal and child abuse investigations Th 1 . h id d h d h~,., j l 1 ~e,/ d ' ' th e exp anations t at were provi e to me were t at ay I\ was ancmg wi the child and they believed caused the injury . I explained to tnem after speaking with medical professionals that ... that was not a plausible explanation. And then at that point, that's when they had stated that they believed that the injury had been caused by the nurse when she had attempted the nursemaid's elbow .5

a s " a person wh o h a s committed child abu s e a s de fi ned in thi s sec tion, " an d c an be a paren t of in 18 P a .C . S. § 302 ( rel ating to general requirements o f culpabili ty) . " Perp e tr ato r " is al s o defin e d o r subst anti al p ai n . " §63 03 ( a ). " Inte ntionall y, " " kn o wingl y" and "re c klessl y" are terms defin e d of failure to act." § 6303(b.1 ) ( 1 ) . " Bodily injury" is defined as " impairment of ph ys i c al c onditi on recklessl y doin g an y o f th e foll o win g: ( 1) c aus i ng bodil y in j u ry to a ch ild thro ug h an y rec en t a ct Act and the CPSL. The CPSL defines " child abuse " , in part, a s, " inten tion all y, kno w in g l y o r In re sol v in g abu se alle g ation s, the C ourt mu s t refer to the d efin iti on s pr ov i de d i n b o th th e ( 1993) . services to p re v ent an y fu rther abuse . In Interest of J.R.W . , 428 Pa . Super . 59 7, 631 A. 2d 1019 effecti v e reporting of s uspected child abuse and to serve as a v ehicl e fo r providin g p r ote cti v e a c hild has be e n abused . Th e primary purpose of the CPSL is to pr ov id e fo r the qu ic k and Court jurisdiction over and the authority to make dependency findi ngs , includi ng w h e ther o r n o t Ju v enile A c t ( Act) mu s t be c on s trued and appl i ed togethe r . T he A ct i s a pr oce dur al a ct g i v in g th e abu s e is alleg e d in a dependen c y ca s e, the Child Protective Services Law ( CP S L ) and th e th e C hild, the Court first established that the Child ' s injuri es c onsti tu te d abuse . Wh ere c hild Pare nts the perpetrators of that abuse. In deciding whether Parents w ere perp e trat o r s o f abu se to Parents first argue the Court erred in finding B . L. to be an abus e d c hild and findin g Pare nt s . P arent s h ave appe aled the December 21, 2015 , Order o f Adjudicati o n an d D i spositio n . di s po s ition appro v ing a child permanen cy plan w ith the primary goal o f reunificatio n with were the p erp e trators of that abuse . The Court also found B . L. dependent and entered a the Child to be a victim of ph y sical abuse as d e fined in 23 Pa . C. S.A § 6 3 03 and foun d Paren ts tes timony of Ms. Garber, Dr . Crowell and Elan Roth, the A genc y c a sew o rke r . The Court found At the a djudic atio n/dispo s ition heari ng on Decemb er 21 , 2 0 1 5 , the A g e n cy offe red the6 Evidence that a child suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omission of the parent or other evidence in certain circumstances. §6341(c). 23 Pa . C . S.A. § 638l(d) provides : the identity of the perpetrator of that abuse need only be established through prima facie Agency has the burden of proving the existence of child abuse by clear and convincing evidence, evidentiary presumption in Section 638l(d) regarding the identity of the abuser. While the The Superior Court has long recognized the applicability and importance of the circumstantial evidence is more fully discussed in the next part of this opinion. sufficient quantity and quality. Malice need not be proved to establish child abuse. This reckless act causing bodily injury can be established through circumstantial evidence of of the parents as the perpetrators of that abuse. Evidence of the requisite intentional, knowing, or this Court ' s finding that B.L. ' s injuries satisfied the definition of " child abuse" and the identity Furthermore, an analysis of the record reflects the substantial evidence presented in support of from his spiral fracture. He would not move his arm and cried when other's tried to move it. fracture, would have caused significant, on-going pain. It is clear, B.L. suffered substantial pain testified that in addition to B.L. 's inability to move his arm, the injury that caused a spiral impaired his physical functioning and explained his unwillingness to use his arm . Dr . Crowell the visit to LGH. The X-Rays revealed B.L. suffered a spiral fracture of his humerus, which pursuant to Section 6303(b . l ). Parents testified the Child was not moving his arm, necessitating injuries that B.L. sustained impaired his physical condition and resulted in substantial pain, The record supports and the Court found by clear and convincing evidence that the Instead, the abuse must be established by clear and convincing evidence . Id. not enough to compel a finding of child abuse . Matter of Read, 693 A.2d 607 (Pa. Super. 1997) . the child . Id. When determining whether child abuse occurred, innuendo and suspicion alone are7

e xtremely unlikely that a fou r y ear old child would be able to cause the injury given the amount explanations Parents gave w ould hav e resulted in the type o f i njury B.L. sustained. It was credibl e . They failed to rebut the presumption . Dr . C r owell testified that neith er of th e Moreover, the Court found neither o f Parents ' explanations for B.L. 's injury to be · ·· --· - tha n ~ - ---····· - - - - -- - . .. attention to Child ' s in

j ury . Parents do not argue any other i ndi v iduals were caring for B.L. during helped a neighbor. She further testified that upon returning to the liv i ng room, Fath er call e d her testi fied that she left the Child alone with Father for about an hour while sh e showered and injury. Mother testified that B.L. was fine before napping in his swing the day of the injury . She The record shows that Parents w ere B . L. 's sole caregivers the days leading up to his presented by the Agency and the rebuttal of the Parents. Id. presumption then rests with the trial court to weigh the credibility of the pri ma facie evidence another person or the injuries were accidental rather than abusive. Evaluation of the validity of that they did not inflict the abuse , potentiall y by testifying that they gav e responsibility to In the Interest of L.Z . , 111 A.3d 1164 (Pa. 2015). Parents may present evidence demonstrating presumption satisfies the intent element unless the prima facie evidence is successfully rebutted . abuse unless the parent rebuts the presumption . Pennsylvania case law states that the protect the child . Prima facie evidence is sufficient to establish that the parent perpetrated that and protection of the child, wh e ther they actually inflict the injury or failed i n their du ty to When a child is in the care of multiple parents , both parents are accountable for the care Welfare, 972 A.2d 1254. §6381(d) ; B . B. v . Department of Public Welfare, 17 A.3d 995 ; C.S. v . Department of Public person responsible for the welfare of th e child shall be prima facie evidence o f c hild abuse b y the parent of other person responsible for the welfare of the c hild.8

Court were to believe Father that Ms . Garber caused the spiral fracture during the reduction, then the reduction c orrectly. Howe v er, the Court does not follow Father' s logic. Specifically, if the that Father is implying Ms. Garber performed the reduction incorrectl y and the doctor performed testimony that a Child would display b e fore and after a successful reduction. The Court infers 

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· - · .. . .. . - - . . . . " · ·- - ·· · -·- -- - -· - -· ·· · · - · · · - - - - - - . - - - - ~ - - - · - - -- - immediately afterward . Ironically, these were the exact behaviors Ms . Garber indi cated in her comfortable during the second attempt at reduction performed by Dr. Dumornay, and was fine s he was around but did not cry any other time . Father also testified that the child wa s record , Father testified that B . L. was so upset by Ms . Garber's presence that he would c ry when Father then testified in an attempt to blame M s . Garber . Contrary to all the other evidence in the After again being told his explanation was not consistent with the medical evidence, the pain was caused from the spinal fracture. Garber that it was not a nursemaid's elbow . After reviewing the X-Rays, it was determined that reduction. Even after the reduction was attempted, B.L. continued to cry. This suggested to Ms . moved. The record is quite clear that B.L.' s injuries were present prior to Ms . Garber' s Parents ' account indi cates that B.L. wasn't using his arm and that he cried when his arm was contested that B . L. displayed symptoms of an injury to his arm prior to his visit to LOH . The Parents then accused the LOH Nurse Practitioner, Ms . Garber , of causing the injury . It is not Upon being told that their first explanation was inconsistent with the medical evidence , credible . arm . Therefore, the Court did not find the explanation that Child's sibling inflicted the injury from pain. According to Paren t s , it was only after his nap that they noticed B . L. wasn ' t using his spiral fracture , B.L. would have resulted in the impairment of his arm and cried out immediately of force necessary to cause a spiral fracture. Moreover , even if the four year old had caused the9

protection of child from harm §630 2( 1) . e x i s ts prop er care, equal we i ght is given to acts and omissions sin c e parental duty include s Intere st of J.0 . V. , 454 P a . Super. 630, 686 A.2d 421, 423 (1996) . In determining whether there e x press bewilderment o v er the cause of his injuries does not obviate their re s ponsibility." In the evidence that B.L. was a victim of child abuse as defined in the st atute . "The fact that hi s parent s The Court again disagrees. The totality of the rec o rd establi s hes that clear and convincing abuse and posed no risk to the child, and therefore, a finding of dependency was m a de in error . 1997). That is exactly the basis for the Court ' s decision. Paren t s argue that the y did not cause the abuse may support an adjudication of dependency." In re C . R . S., 6 96 A.2d 840 , 843 (Pa. Super. Parents also appeal the finding of depend e ncy. The Courts have held that " A finding of Mother and Father were perpetrators of the abuse. recklessly inflicted on the Child . Prima facie evidence was pre s ented a s explained abov e that clear and convincing evidence that the injuries were either intentionally or knowingly or non-accidental and were consi s tent with child abuse. The totality of the record establishes by explained away by his parents . The medical evidence established that the Child's injuries were injuries the Child sustained were the result of child abuse. The injuries could not be acceptabl y Therefore, the Court found that clear and convincing evidence was presented that the credible explanation for B.L. ' s injuries . would not occur from an ordinary reduction. Parents' attempts to shift the blame lacks any and treats them using the same method. Furthermore, Dr. Crowell testified that a spiral fracture Ms . Garber routinely and successfully performed reductions approximately on c e a week injury. B.L. would not be calm during the second reduction, but in s tead would be i n pain from that ne w10 In determining dependency, the Court ' s primary consideration was the safety and health o f the Child, the victim of the physical abuse. Clear and convincing evidence existed that the Child w as abused and without parental care and that Child's injuries would not have occurre d but for Parents ' acts or omissions as his primary caregivers . The record supports the Court's finding that B . L. is a dependent child. Parents also argue that Ms . Garb er's testimony was contradictory and questionable. The Court examined the exhibits admitted to the record to gain a more accurate timeline in instances where testimony was uncl e ar. Despite Parents arguments to the contrary, the Court found the testimony of Ms. Garber and Dr. Crowell to be credible and persuasive. In contrast, the Court found Parents' testimony to be evasive and lacking credibility. Parents were unable to provide a consistent explanation for B.L. 's injuries that would fit with the medical e vidence. The y were unable to answer any specific questions on wh e n the original injury occurred . And the y attempted to blame others once they discovered the medical evidence rejected their prior explanation. Furthermore, Father argues that Dr. Crowell's testimony should be disregarded because it was based on speculation and LGH records. Father's argument simply ignores that Dr. Crowell and her team conducted a separate exam of Child, met with Child's parents and e v en ordered new X-rays, in addition to re v iewing LGH records. To be clear, while the Court did find Ms . Garber's testimony and the LGH records credible, it did not rely solely on the statements provided by Ms. Garber in rendering its opinion. The Court relied on the totality of the substantial medical evidence concerning the c hild's injuries . " Substantial evidence" is defined under 23 Pa. C . S . §6303 as " ev i dence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion . " The totality of the credible

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# ~~: · ~ Jt Ja c qu e ~ , n E. P f ur s ich fll ,nu~ U l\\\l Cle rk of C ourt s 

## o+> David Natan, Esq . o<h

. . . ~ lbert J. Mei~r~

_ ~ sq . _ 

### o'V Patricia Dunlevy - Williams, E sq . John 

### P . Stengel, 

### Esq . o~ o~"-~ Children and Youth Agency (2) 

### E. L... , , Mother 

# > V'°" ..\u J, t.., 1 , Father ilbv~e_ Copies to : ATTEST : E Date : 

# IJ,;,11, 2o!G, BY THE COURT: Court . Abuse sh o uld be affirmed. The Clerk of Courts is directed to transmit the record to the Superior determination that the Agency met its burden and the Order of Adjudication and Finding of Father in their respective 192S(b) statements have been fully addressed. The Court's establishes that the Parents were the perpetrators of his abuse . All issues raised by Mother and that B . L. was an abused child and that B . L. is a dependent child. Furthermore , the record found for the above stated reasons, that the Agency established by clear and con v incing e vidence Based upon the evidence presented and hav ing resolved 

### all issues of credibility, the Court inconclusi v e testi mony recei v ed from the parents . and relevant medical evidence in this record is compelling and outweighs the inconsistent and