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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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 HAVE 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 

DESCRIPTIONS 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 RECORDS 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 because [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

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unique posture, we will not overrule [its] findings if they 

are supported by competent 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 cases 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 court, 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 trial 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 relevant 

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

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(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 

prima 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 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.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 or 
J-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 the 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 Child 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 parents 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. Crowell 
J-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 injury 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 Child’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 

evidence 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 parents’ 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, ordered 
J-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 

medical 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. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2016
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1 

2 In their respective 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 parties 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, 20161, 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~ 

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On October 1, 201 S, the Lancaster County Children and Youth Social Service ~entt 

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OPINION SUR APPEAL 

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CP-36-DP-197-201' 

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INRE: 

B .. L, 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

JUVENILE COURT DIVISION 

Circulated 08/31/2016 04:12 PM
2 

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 dislocated and the child won't move their arm. The kind of just hold 

their arm in an uncomfortable position until it is successfully 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 Testimony (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 arrived 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 questionable 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 evidence that they intentionally, knowingly 
3 

the caseworker for the injury: 

Grandparents. Following the implementation of the FSP, Parents provided two explanations to 

contact between Parents and B.L. The children were to reside with Paternal 

The Agency then implemented a Family Safety Plan (FSP) prohibiting any unsupervised 

· - -co-mrur.Dr.I>~isclrarge"d and ·s-em B:t:·trom-e wtm-Parents. N-:1.ar2·s-;-------------·--- -- 

N. T. at 49:23-25, 50: 1-2. B.L. was placed into a splint and given Tylenol with codeine for pain 

She's four, it would be, you know, unusual for a four year old to inflict any injury 

such as that on another child. And again, it would depend how she was holding his 

arm, how he responded thereafter. He should have been immediately symptomatic 

thereafter. I think it unlikely. 

inconsistent with Child's injuries: 

with him while he was in his roller chair. Ms. Garber testified that this explanation was 

been caused by B.L. 's four year old half-sister, who would take B.L.'s arms and dance 

trauma could have caused the injury. N.T. at 15-16. Mother then stated the injury might have 

leading up to the injury. Following the X-Rays, Ms. Garber once again asked the Parents if any 

Parents' testimony placed them as the only two caregivers for the child for the days 

Police began investigating the report. 

concerns of child abuse. N.T. at 15. The concern was reported to ChildLine, and the Agency and 

injured his arm, Ms. Garber consulted Dr. Dumomay, the supervising ER physician, with 

mobile. N.T. at 56:6-9. Because there was no explanation given for how the child could have 

A spiral type fracture is considered suspicious if no trauma or fall is reported and the child is not 

area, of the same arm. Id. At that time, Parents denied knowledge of any recent injury or trauma. 

that area. N.T. at 14. The X·Rays also showed a possible fracture of the distal ulna, the wrist 

that B.L. had a spiral fracture of his right humerus, which is commonly caused from a twisting of 

or child suffered some other injury. N.T. at 31. She then ordered XRays. The X-rays showed 
4 

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 have resulted in the twisting 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 physical 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 neglect. 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 Hershey 

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~,.,jl1~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 

as "a person who has committed child abuse as defined in this section," and can be a parent of 

in 18 Pa.C.S. §302 (relating to general requirements of culpability). "Perpetrator" is also defined 

or substantial pain." §6303(a). "Intentionally," "knowingly" and "recklessly" are terms defined 

of failure to act." §6303(b.1 )( 1 ). "Bodily injury" is defined as "impairment of physical condition 

recklessly doing any of the following: (1) causing bodily injury to a child through any recent act 

Act and the CPSL. The CPSL defines "child abuse", in part, as, "intentionally, knowingly or 

In resolving abuse allegations, the Court must refer to the definitions provided in both the 

(1993). 

services to prevent any further abuse. In Interest of J.R.W., 428 Pa. Super. 597, 631 A.2d 1019 

effective reporting of suspected child abuse and to serve as a vehicle for providing protective 

a child has been abused. The primary purpose of the CPSL is to provide for the quick and 

Court jurisdiction over and the authority to make dependency findings, including whether or not 

Juvenile Act (Act) must be construed and applied together. The Act is a procedural act giving the 

abuse is alleged in a dependency case, the Child Protective Services Law (CPSL) and the 

the Child, the Court first established that the Child's injuries constituted abuse. Where child 

Parents the perpetrators of that abuse. In deciding whether Parents were perpetrators of abuse to 

Parents first argue the Court erred in finding B.L. to be an abused child and finding 

Parents. Parents have appealed the December 21, 2015, Order of Adjudication and Disposition. 

disposition approving a child permanency plan with the primary goal of reunification with 

were the perpetrators of that abuse. The Court also found B.L. dependent and entered a 

the Child to be a victim of physical abuse as defined in 23 Pa. C.S.A §6303 and found Parents 

testimony of Ms. Garber, Dr. Crowell and Elan Roth, the Agency caseworker. The Court found 

At the adjudication/disposition hearing on December 21, 2015, the Agency offered the 
6 

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 are 
7 

extremely unlikely that a four year old child would be able to cause the injury given the amount 

explanations Parents gave would have resulted in the type of injury B.L. sustained. It was 

credible. They failed to rebut the presumption. Dr. Crowell testified that neither of the 

Moreover, the Court found neither of Parents' explanations for B.L. 's injury to be 

···--·-than~----·····------- ... 

attention to Child's injury. Parents do not argue any other individuals were caring for B.L. during 

helped a neighbor. She further testified that upon returning to the living room, Father called her 

testified that she left the Child alone with Father for about an hour while she 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 were 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 prima facie evidence 

another person or the injuries were accidental rather than abusive. Evaluation of the validity of 

that they did not inflict the abuse, potentially by testifying that they gave 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, whether they actually inflict the injury or failed in their duty 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 the child shall be prima facie evidence of child 

abuse by the parent of other person responsible for the welfare of the child. 
8 

Court were to believe Father that Ms. Garber caused the spiral fracture during the reduction, then 

the reduction correctly. However, the Court does not follow Father's logic. Specifically, if the 

that Father is implying Ms. Garber performed the reduction incorrectly and the doctor performed 

testimony that a Child would display before and after a successful reduction. The Court infers 

. ----~---·----- " ··--···-·-----·--··· ··-···------ ---·-~ ·-· ...... -- .... 

immediately afterward. Ironically, these were the exact behaviors Ms. Garber indicated in her 

comfortable during the second attempt at reduction performed by Dr. Dumornay, and was fine 

she was around but did not cry any other time. Father also testified that the child was 

record, Father testified that B.L. was so upset by Ms. Garber's presence that he would cry when 

Father then testified in an attempt to blame Ms. 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 indicates 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 Parents, 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 the 
9 

protection of child from harm §6302(1). 

exists proper care, equal weight is given to acts and omissions since parental duty includes 

Interest of J.0.V., 454 Pa. Super. 630, 686 A.2d 421, 423 (1996). In determining whether there 

express bewilderment over the cause of his injuries does not obviate their responsibility." In the 

evidence that B.L. was a victim of child abuse as defined in the statute. "The fact that his parents 

The Court again disagrees. The totality of the record establishes that clear and convincing 

abuse and posed no risk to the child, and therefore, a finding of dependency was made in error. 

1997). That is exactly the basis for the Court's decision. Parents argue that they did not cause the 

abuse may support an adjudication of dependency." In re C.R.S., 696 A.2d 840, 843 (Pa. Super. 

Parents also appeal the finding of dependency. 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 presented as explained above that 

clear and convincing evidence that the injuries were either intentionally or knowingly or 

non-accidental and were consistent 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 acceptably 

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 once a week 

injury. 

B.L. would not be calm during the second reduction, but instead would be in pain from that new 
10 

In determining dependency, the Court's primary consideration was the safety and health 

of the Child, the victim of the physical abuse. Clear and convincing evidence existed that the 

Child was abused and without parental care and that Child's injuries would not have occurred 

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. Garber'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 unclear. 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 evidence. They were 

unable to answer any specific questions on when the original injury occurred. And they 

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 even ordered 

new X-rays, in addition to reviewing 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 child's injuries. "Substantial evidence" is defined 

under 23 Pa. C.S. §6303 as "evidence which outweighs inconsistent evidence and which a 

reasonable person would accept as adequate to support a conclusion." The totality of the credible 
11 

I certify this document to be filed 

in the Lancaster County 0-ffice of 

the Clerk of the Courts. 

,,,\1\\ttr~r.,,,,, 

~

~~''

;;;, , it\~:~ri,' , \~ J 

§4¥, .. • ••. ~:\ ' rr t~ ,i~~--- .. -- - F· - · -67. r;z;.~- 

i~··· t ,'1!:i§ ·,},~· ,.,.. ~ ~~: ·~Jt Jacque~,n E. Pfursich 

fll,nu~Ul\\\l 

Clerk of Courts 

o+> 

David Natan, Esq. o<h 

... ~lbert J. Mei~r~_~sq. _ o'V 

Patricia Dunlevy- Williams, Esq. 

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 should 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 convincing evidence 

Based upon the evidence presented and having resolved all issues of credibility, the Court 

inconclusive testimony received from the parents. 

and relevant medical evidence in this record is compelling and outweighs the inconsistent and