In the Int. of: N.M.M., Appeal of: A.M.

J-S19032-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.M.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: A.M., FATHER :

:

:

:

: No. 426 EDA 2022

Appeal from the Order Entered January 14, 2022

In the Court of Common Pleas of Philadelphia County Juvenile Division at

No(s): CP-51-DP-0000137-2021

IN THE INTEREST OF: M.M., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

:

:

APPEAL OF: A.M., FATHER :

:

:

:

: No. 427 EDA 2022

Appeal from the Order Entered January 14, 2022

In the Court of Common Pleas of Philadelphia County Juvenile Division at

No(s): CP-51-DP-0000138-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 07, 2022

A.M. (“Father”) appeals from the January 14, 2022, orders entered in

the Court of Common Pleas of Philadelphia County, Juvenile Division (“trial

court”), adjudicating his children, N.M.M. (born in June of 2018) and M.M.

(born in February of 2020) (collectively “the Children”), dependent after the

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S19032-22

trial court determined Father was the perpetrator of abuse as to his infant,

G.M., who died on June 16, 2020. Further, the trial court found that

aggravated circumstances existed as to Father.1 After a careful review, we

affirm.

The trial court has aptly set forth the relevant facts and procedural

history as follows:

The Philadelphia Department of Human Services (“DHS”)

first became aware of this family on June 17, 2018, when DHS

received a General Protective Services (“GPS”) report alleging that

N.M.M. and Mother tested positive for marijuana at N.M.M.’s birth

in June [of] 2018. Father also admitted using marijuana on June

16, 2018. Mother and Father were residing in the same home.

The GPS was determined to be valid.

On March 1, 2019, Community Umbrella Agency (“CUA”)

implemented In-Home Services in N.M.M.’s paternal

grandparents’ home where Mother and Father resided. Father was

not compliant with CUA services, including failure to complete

substance use assessments and parenting classes.

In February [of] 2020, Mother gave birth to twins, G.M. and

M.M. The twins were born premature, weighed three (3) pounds,

and had gastrointestinal issues. After spending several weeks in

the hospital, G.M. and M.M. were discharged on March 26, 2020,

to Mother’s and Father’s care. Neither parent informed DHS or

CUA of Mother’s pregnancy [as to G.M. and M.M.]. DHS and CUA

did not learn of Mother’s pregnancy or the twins’ birth until June

16, 2020.

On June 16, 2020, DHS received a GPS report alleging that

the Philadelphia Police Department (“PPD”) was called to the

family home at noon because G.M. was unresponsive. When

____________________________________________

1Father filed a separate notice of appeal as to each child (N.M.M. and M.M.),

which this Court consolidated. The trial court entered orders finding Mother to

be a perpetrator of abuse as to G.M., as well as aggravated circumstances

existed as to Mother. Mother filed separate notices of appeal at 366-369 EDA

2022. This Court consolidated Mother’s appeals, which we address in a

separate decision.

-2-

J-S19032-22

paramedics arrived, G.M. was pronounced dead. When DHS

visited the family home that same day, Mother stated that Father

was at work at the time of the incident. On June 17, 2020, the

Philadelphia Medical Examiner’s Office (“M.E.”) stated that G.M.

had a healing rib fracture at the time of death. On June 19, 2020,

CUA visited the family home. Father would not speak to CUA and

remained in a bedroom throughout the visit.

On November 25, 2020, DHS received a Child Protective

Services (“CPS”) report stating that the June 17, 2020, M.E. report

on G.M.’s death confirmed that G.M. had a healing rib fracture,

and that based on the area of the fracture, it was consistent with

child abuse. The M.E. could not confirm whether the rib fracture

contributed to G.M.’s death. This report was indicated. At the

time of G.M.’s death, the Medical Examiner found that G.M. had a

healing right posterior third rib fracture, which was consistent with

inflicted trauma from child abuse. Additionally, the Medical

Examiner noted that G.M. had a hemorrhage on the right side of

her brain and a bilateral subdural hematoma. Mother and Father

were unable to explain the cause of G.M.’s injuries.

On February 5, 2021, DHS received a CPS report stating

that G.M.’s autopsy revealed that G.M.’s healing rib fracture

occurred two to three weeks prior to G.M.’s death, and that

intercranial hemorrhages were found in her brain. The report also

alleged that G.M. was four months old at the time of her death.

The CPS report alleged that G.M.’s head and rib injuries were

sustained on different occasions. The report also alleged that the

only explanation for G.M.’s head injury was inflicted trauma.

While the cause and manner of G.M.’s death was “undetermined,”

the CPS report stated that G.M.’s injuries were indicative of child

abuse.

On February 5, 2021, Mother and the Children, [N.M.M. and

M.M.,] began residing at Pathways. That same day, DHS

developed a Safety Plan stating that Pathways staff would ensure

the safety of the Children and that their basic needs would be met,

which included 24-hour supervision of Mother and the Children.

When DHS visited Mother at Pathways on February 8, 2021,

Mother stated that she and Father were residing with the

Children’s paternal grandmother at the time of G.M.’s death.

Mother stated that she and Father were G.M.’s primary caregivers.

[On February 10, 2021, DHS filed dependency petitions as to

N.M.M. and M.M. requesting that they be adjudicated dependent

and committed to the custody of DHS, as well as that the trial

court enter findings of child abuse and aggravated circumstances

-3-

J-S19032-22

against Mother and Father based on G.M.’s unexplained injuries.]

On February 27, 2021, CUA learned that Pathways was no longer

able to monitor Mother and the Children to the extent necessary

under the terms of the Safety Plan. That day, DHS obtained an

Order for Protective Custody (“OPC”) for the Children and placed

them in foster care. At the March 1, 2021, shelter care hearing,

the [trial] [c]ourt lifted the OPC and ordered the temporary

commitment to DHS to stand. The Children were subsequently

placed in Kinship Care with their paternal grandmother.

On January 14, 2022, [the trial court] held an Adjudicatory

and Child Abuse hearing for [N.M.M. and M.M.2]. Counsel for DHS

called their first witness, DHS Supervisor, Ms. Michelle Ludwig.

(N.T., 1/14/2022, at 13-60). Ms. Ludwig testified that the

Children first became known to DHS in June 2018 when DHS

received a GPS report alleging that N.M.M. tested positive for

marijuana at birth. [Id.] at 15[.] Ms. Ludwig testified that DHS

determined the GPS report was valid and implemented In-Home

Services for the family. Id. at 15-19. Ms. Ludwig stated that her

team was assigned this case on June 16, 2020, when DHS

received a subsequent GPS report that the Children’s sibling, G.M.,

passed away. Ms. Ludwig stated that her unit was assigned this

case because she supervised the fatality and near fatality unit.

Id. at 20-25. At this point, CUA was still providing the family with

In-Home Services. [Id. at 16.] Ms. Ludwig further testified that,

at the time of G.M.’s death, the Children were in Mother’s and

Father’s care. Id. at 14-18. Ms. Ludwig testified that the June

2020 GPS report noted that G.M. sustained a rib fracture.

However, because G.M.’s autopsy had not been completed, DHS

could not confirm the cause of the injury, and the GPS report was

determined to be invalid. [Id. at 16-17.]

Ms. Ludwig testified that DHS received a CPS report for

serious physical injury on November 25, 2020, alleging that G.M.

sustained a rib fracture that was consistent with child abuse. [Id.

at 17.] Specifically, Ms. Ludwig testified that the allegations in

the CPS report included “causing bodily injury to a child through

recent act or failure to act.” [Id. at 19.] Ms. Ludwig noted that

the report indicated Mother and Father as the alleged perpetrators

and the victim child as G.M. Id. at 3-8. Ms. Ludwig further

____________________________________________

2 We note Mother and Father were both present at the hearing and

represented by counsel. Also, the trial court appointed Margaret Jefferson,

Esquire, as the guardian ad litem/advocate for the Children.

-4-

J-S19032-22

testified that she never spoke to Father during the investigation.

[Id. at 22.] Ms. Ludwig testified that, throughout the

investigation, Father was unable to provide her or her

investigative workers with an explanation as to how G.M. could

have sustained the rib fracture. [Id. at 22.] Ms. Ludwig also

testified that Mother and Father were the only identified caregivers

for G.M. [Id. at 23.] The CPS report indicated Mother and Father

as the perpetrators of abuse of the victim child, G.M. [Id. at 23-

24.]

Ms. Ludwig testified that DHS received an additional CPS

report on February 5, 2021, with allegations against Mother and

Father for causing serious bodily injury to a child through recent

act or failure to act. [Id. at 29.] Ms. Ludwig testified that this

CPS report involved a head injury sustained by the victim child,

G.M., and indicated Mother and Father as the perpetrators. Id.

at 17-23. Ms. Ludwig testified that [neither Father nor Mother]

could…provide an explanation as to how G.M. could have

sustained a head injury. [Id. at 31.] Ms. Ludwig also testified

that Father did not identify anyone else who cared for G.M. when

she sustained the head injury. [Id. at 32.] This CPS report was

indicated and stated that G.M. sustained injuries consistent with

child abuse while in the sole care of Mother and Father. [Id. at

32-34.]

Ms. Ludwig testified that Father had a history of substance

use. [Id. at 38.] Ms. Ludwig further testified that[,] when she

concluded her investigation, DHS had concerns regarding [the]

safety and present danger to the Children in Mother’s and Father’s

care. [Id. at 43-44.] Ms. Ludwig stated that due to these safety

concerns[,] as well as G.M.’s unexplained injuries, it was in the

best interests of [N.M.M. and M.M.] for DHS to obtain an OPC in

order [to] ensure their safety. [Id. at 44.]

On cross-examination by the Child Advocate, Ms. Ludwig

testified that she had concerns regarding reports of domestic

violence between Mother and Father. [Id. at 46.] Ms. Ludwig

further testified that neither parent was able to provide an

explanation for how G.M. sustained the rib and head injuries. [Id.

at 47.] When given the opportunity to cross-examine Ms. Ludwig,

Father’s Counsel stated that he did not have any questions. [Id.

at 47.]

Counsel for DHS then called their next witness, acting Chief

Medical Examiner for the Philadelphia Medical Examiner’s Office,

Dr. Albert Chu. [Id. at 62-126.] Dr. Chu testified that he is

-5-

J-S19032-22

currently employed at the Philadelphia Medical Examiner’s Office

(“M.E.”) as the acting Chief Medical Examiner. [Id. at 63.] Dr.

Chu testified that he has been employed by the Philadelphia M.E.

since July 2014[,] and [he] has been the acting Chief Medical

Examiner since August 2021. Prior to his current position, Dr. Chu

was employed as the Deputy Chief Medical Examiner at the

Philadelphia Medical Examiner’s Office. Dr. Chu further testified

that he specializes in forensic pathology and is certified by the

American Board of Pathology in anatomic, clinical, and forensic

pathology. [Id. at 63.] Dr. Chu also testified that he has been

qualified as an expert in forensic pathology in a court of law over

two hundred (200) times. [Id. at 64.] On cross-examination by

Mother’s Counsel, Dr. Chu testified that he was not certified as an

expert in child abuse. [Id. at 67.] Th[e] [trial court] qualified Dr.

Chu as an expert in forensic pathology. [Id.]

Dr. Chu testified that he was the direct supervisor for Dr.

Lyndsey Emery, the assigned pathologist who performed G.M.’s

autopsy. [Id. at 66, 69.] Dr. Chu stated that he was familiar with

this case, and [he] also reviewed Dr. Emery’s reports in

preparation for the January 14, 2022, hearing. [Id. at 67.] Dr.

Chu testified that his role as Dr. Emery’s supervisor on this case

was to provide guidance through conferences, assist in

formulating a final opinion as to the cause and manner [of] death,

[and]…to finalize and approve the autopsy report. [Id. at 69-70.]

Dr. Chu stated that most of his recollection of this case stemmed

from his review of Dr. Emery’s Final Diagnosis Report in

preparation for the January 14, 2022, hearing. [Id. at 71.] Dr.

Chu testified that autopsy and final diagnosis reports are recorded

at or near the time of the autopsy. [Id. at 71-72.] He testified

that it is a regular practice of the Medical Examiner’s office to

generate autopsy and final diagnosis reports. [Id. at 72.] Dr. Chu

further testified that these reports are recorded and kept in the

regular course of business by the Medical Examiner’s Office. Dr.

Chu stated that a report of examination[,] as well as a report of

final diagnosis[,] were generated at or near the time of G.M.’s

autopsy[.] [Id. at 71-72.]

Dr. Chu testified that[,] while there were no acute injuries,

evidence of prior injuries to G.M.’s head, brain, and ribs were

found during G.M.’s autopsy. [Id. at 80.] Specifically, G.M.’s

autopsy showed old subdural and subarachnoid hemorrhages[,]

as well as an injury to the brain due to the interruption of blood

flow. Id. Dr. Chu testified that there was also evidence of a

healing rib fracture. Id. Dr. Chu specified that the head, brain,

-6-

J-S19032-22

and rib injuries did not occur immediately around the time of

G.M.’s death. Id. Dr. Chu testified that neither routine CPR

administered at the time of death, routine caregiving, nor co-

sleeping with her twin would have caused G.M.’s rib fracture. [Id.

at 84-85.] Dr. Chu also testified that based on her age G.M. could

not have caused this injury to herself. Dr. Chu testified that G.M.’s

rib injury was most consistent with inflicted trauma. [Id. at 86.]

Dr. Chu could not make a conclusion as to the cause of G.M.’s

brain injuries, stating that those types of injuries can occur in

various ways, including from birth trauma, significant force

inflicted to the head, shaking, or accidentally. [Id. at 90-94.] Dr.

Chu further testified that there was no indication…that G.M.

sustained any birth trauma that may have caused the brain

injuries. [Id. at 92-94.]

Dr. Chu testified that the cause and manner of G.M.’s death

was undetermined, but her death was not ruled as natural or

accidental. [Id. at 95, 97.] Dr. Chu further testified that it was

likely that G.M.’s injuries—specifically the rib fracture—were the

result of abuse. [Id. at 97-98.] Dr. Chu testified that this finding

was also included in the M.E. Final Diagnosis report regarding G.M.

[Id. at 98.]

On cross-examination by the Child Advocate, Dr. Chu

testified that the M.E. office found that G.M.’s brain injuries were

blunt impact injuries. [Id. at 105.] Dr. Chu also gave his opinion

that G.M.’s injuries may have been caused by forceful shaking of

the head without impact. Id. at 91. Dr. Chu further testified that

these types of injuries can be sustained due to a fall, car accident,

or other traumatic incident, but that the M.E. office has no

documentation that G.M. was ever involved in any traumatic

incident. [Id. at 106-07.]

On cross-examination by Father’s Counsel, Dr. Chu testified

that there could be multiple potential causes for G.M.’s brain

injuries. [Id. at 109-10.] Dr. Chu further testified that the M.E.

reviewed G.M.’s birth and pediatrician records to determine if

there was any evidence that G.M.’s brain injuries were caused by

birth trauma or involvement in a traumatic incident or fall. [Id.

at 110-11.] Dr. Chu testified that, to his knowledge, G.M.’s

medical records did not show any evidence that G.M.’s brain

injuries were caused by these alternative explanations. [Id. at

111.] Dr. Chu also testified that premature babies are more

fragile than non-premature babies. [Id. at 112.]

-7-

J-S19032-22

On cross-examination by Mother’s Counsel, Dr. Chu testified

that he did not prepare a report for the January 14, 2022[,]

hearing, but that he reviewed the M.E.’s records regarding this

case prior to the hearing. [Id. at 115.] Dr. Chu stated that he

reviewed the M.E. investigator’s reports during the January 14,

2022[,] hearing. [Id. at 118.] Dr. Chu testified that he was not

involved in G.M.’s autopsy nor did he review Dr. Emery’s autopsy

or final diagnosis reports contemporaneously. [Id. at 119.]

On redirect examination, Dr. Chu testified that there was no

medical documentation from the M.E. office to account for G.M.’s

brain injuries nor was there any indication in G.M.’s primary care

physician records that account for these injuries. [Id. at 125.]

Dr. Chu further testified there was no indication that G.M.’s

premature birth caused G.M.’s rib fracture. If the rib fracture had

been birth-related, this injury would have been resolved by the

time she was four-months old—G.M.’s age at the time of her

death. Id. at 122-25[.]

Mother’s Counsel called [one] witness, current CUA Case

Manager, Ms. Olivia Robinson. [Id. at 128-39.] Ms. Robinson

stated that she was assigned this case on October 10, 2021. [Id.

at 128.] On cross-examination, Ms. Robinson testified that she

had safety concerns regarding Mother and Father due to G.M.’s

unexplained injuries. [Id. at 132.] She further testified that the

Children are currently placed in Kinship Care with their paternal

grandmother. [Id. at 132-33.] When given the opportunity to

cross-examine Ms. Robinson, Father’s Counsel stated that he did

not have any questions. [Id. at 136.]

Following argument [by] counsel, on January 14, 2022, the

[trial court entered an order finding] that there was clear and

convincing evidence to adjudicate [N.M.M. and M.M.] dependent

based on present inability and to find child abuse as to Father.

[The trial court ordered N.M.M. and M.M. be removed from

Mother’s and Father’s home and continued placement by DHS in

Kinship Care through Turning Points with paternal grandmother.]

[The trial court] also [entered an order finding] that clear and

convincing evidence was presented to make a finding of

aggravated circumstances as to Father.[3]

____________________________________________

3 Based on the testimony indicating that both parents were the primary

caregivers of G.M., N.M.M., and M.M. at the time G.M.’s injuries were inflicted,

(Footnote Continued Next Page)

-8-

J-S19032-22

Father timely filed notices of appeal and a Concise

Statements of Errors Complained of on Appeal on January 27,

2022, and an amended Concise Statement…on February 13, 2022.

[This Court consolidated the appeals.]

Trial Court Opinion filed 3/4/22, at 2-10 (footnotes omitted) (footnotes

added).

On appeal, Father sets forth the following issues in his “Statement of

the Questions Involved” (verbatim):

1. Whether the trial court erred in determining the evidence to

have been sufficient to substantiate the finding of child abuse?

2. Consequently, whether the trial court erred in arriving at an

adjudication of dependency?

3. Additionally, then, whether the trial court erred in the removal

of [the Children] from [Father’s] home and placement into the

custody of the Agency?

4. Lastly, whether the trial court erred in determining there to

have been a finding of Aggravated Circumstances, in that the

evidence being insufficient to establish [Father] having

perpetrated serious bodily injury?

5. Whether there that [sic] the trial court erred in admitting into

evidence the testimony of DHS Supervisor Ludwig, specifically

with respect to several out of court declarations in the form of

opinion having been referenced by way of Agency Exhibits No’s.

1, 2, 3, and 7; and moreover, with those thoughts having been

articulated through conclusory language.

6. Additionally, the testimony of DHS Supervisor Ludwig

concerning the Report of Child Abuse as having been

“Indicated.”

7. And, finally, whether the trial court erred in admitting into

evidence the aforementioned Agency Exhibit No’s. 1, 2, 3, 4,

____________________________________________

the trial court also entered an order finding Mother to be a perpetrator of child

abuse. The trial court also entered an order finding aggravated circumstances

as to Mother.

-9-

J-S19032-22

and 7; with those Exhibits having been repleat [sic] with out of

court statements of opinion, as well as Exhibit No’s. 2 and 4

also expressing the Report to have been “Indicated.”

Father’s Brief at 6 (footnote omitted).

Father’s first, second, third, and fourth issues are related. He challenges

the trial court’s finding that G.M. was a victim of child abuse and Father was

a perpetrator of the child abuse as provided for under the CPSL. 4 He further

contends that, absent sufficient evidence that G.M. was a victim of child abuse

and/or that Father was the perpetrator of the child abuse, the trial court’s

dependency determination as to N.M.M. and M.M. is erroneous, as is the trial

court’s finding that aggravated circumstances existed. Father further

challenges the trial court’s dependency disposition of removing N.M.M. and

M.M. from Father’s home and placing them in Kinship Care.

The Pennsylvania Supreme Court has set forth our standard of review

for dependency cases as follows:

The standard of review in dependency cases requires an

appellate court to accept 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

[trial] court’s inferences or conclusions of law. We review for

abuse of discretion[.]

In the Interest of L.Z., 631 Pa. 343, 111 A.3d 1164, 1174 (2015) (quotation

marks and quotation omitted).

____________________________________________

4 Child Protective Services Law (“CPSL”), 23 Pa.C.S.A. §§ 6301-6387.

- 10 -

J-S19032-22

Where, as in the case sub judice, the trial court deems parents to be

perpetrators of child abuse under the CPSL, we note that “[although]

dependency proceedings are governed by the Juvenile Act[5]…the CPSL

controls determinations regarding findings of child abuse, which the [trial]

courts must find by clear and convincing evidence.”6 In the Interest of L.V.,

209 A.3d 399, 417 (Pa.Super. 2019) (citations and footnotes omitted)

(footnote added). “[T]he [Juvenile] Act and the [CPSL] must be applied

together in the resolution of child abuse complaints under the [CPSL and]

reference must be made to the definition sections of both the [Juvenile Act]

and the [CPSL] to determine how that finding [of child abuse] is interrelated.”

In the Interest of J.R.W., 631 A.2d 1019, 1023 (Pa.Super. 1993).

“As part of [a] dependency adjudication, a court may find a parent…to

be the perpetrator of child abuse[ ] as defined by the…CPSL.” In the Interest

of S.L., 202 A.3d 723, 728 (Pa.Super. 2019) (quotation marks and quotations

omitted). Under the CPSL, “child abuse” is defined as “intentionally,

knowingly, or recklessly doing” one of many acts, including causing bodily

____________________________________________

5 Pennsylvania Juvenile Act (“Juvenile Act”), 42 Pa.C.S.A. §§ 6301-6375.

6 “Clear and convincing evidence” is defined as evidence that is “so clear,

direct, weighty[,] and convincing as to enable the trier of fact to come to a

clear conviction, without hesitance, of the truth of the precise facts in issue.”

In the Interest of C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc)

(quotation marks and quotation omitted).

- 11 -

J-S19032-22

injury7 to a child through any recent act or failure to act.8 See 23 Pa.C.S.A. §

6303(b.1) (defining “child abuse”).

Recently, in In the Interest of C.B., 264 A.3d 761 (Pa.Super. 2021)

(en banc), this Court relevantly set forth the following:

Section 6381 of the CPSL, which governs evidence in court

proceedings, states that “[i]n addition to the rules of

evidence…relating to juvenile matters, the rules of evidence in this

section shall govern in child abuse proceedings in court[.]” 23

Pa.C.S.A. § 6381(a). Specifically,

Section 6381(d)]provides for an ‘attenuated’ standard of

evidence in making a legal determination as to the abuser in child

abuse cases [where] a child has suffered serious physical

injury...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. [In the Interest of

J.R.W., 631 A.2d at 1023 (quotation marks and quotation

omitted). See 23 Pa.C.S.A. § 6381(d).]

In In the Interest of N.B.-A., ___ Pa. ___, 224 A.3d 661

(2020), the Pennsylvania Supreme Court rather recently

____________________________________________

7 The CPSL defines “bodily injury” as “[i]mpairment of physical condition or

substantial pain.” 23 Pa.C.S.A. § 6303(b.1) (defining “bodily injury”).

8 In In the Interest of C.B., 264 A.3d 761, 773 (Pa.Super. 2021) (en banc),

this Court held that a trial court’s culpability determination as to whether the

child abuse was intentional, knowing, or reckless is “superfluous.” We held:

Under Section 6381 of the CPSL, a petitioning party is not required

to establish that the parent or caregiver perpetrated the abuse

“intentionally, knowingly, or recklessly.” Rather, in Section 6381

cases, “the fact of abuse suffices to establish prima facie evidence

of abuse by the parent or person responsible,” permitting

petitioners to “prove their case with only the physical evidence of

injuries that would not ordinarily be sustained but for the action

[or inaction] of the parents or responsible person and the

implausible statements of the parents and responsible persons.”

Id. (quotation and citations omitted).

- 12 -

J-S19032-22

reiterated the appropriate standard of proof for a finding of child

abuse:

The requisite standard of proof for a finding of child

abuse pursuant to Section 6303(b.1) of the CPSL is

clear and convincing evidence. [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.[A.] §

6341(c)[]….However, in certain situations, the

identity of the abuser need only be established

through prima facie[9] evidence. 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, [an appellate]

court is not bound by the [trial] court’s inferences or

conclusions of law.

Id. at 668 (citation omitted).

***

Section 6381(d) of the CPSL, found under the subchapter

titled “Miscellaneous Provisions,” establishes a rebuttable,

evidentiary presumption when a child sustains abuse not

ordinarily suffered absent acts or omissions of a parent or other

responsible party. Under such circumstances, “the fact of abuse

suffices to establish prima facie evidence of abuse by the parent

or person responsible.” In the Interest of L.Z., 631 Pa. 343,

111 A.3d 1164, 1167 (2015).

To aid the [trial court] in determining whether a child has

been abused, “the Legislature deemed it wise and necessary to

establish a different evidentiary standard for finding child abuse

by a parent or person responsible for the child’s care, one in

contrast to the overall standard for determining dependency

under the Act.” Id. The J.R.W. Court recognized:

____________________________________________

9 Prima facie evidence is “[s]uch 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.” In the Interest of L.Z., supra, 111 A.3d at 1184 (citation

omitted).

- 13 -

J-S19032-22

This lessened standard of establishing

abuse by the caretakers [under Section 6381(d)],

coupled with the clear and convincing evidence

necessary to find dependency, has been

imposed by the Legislature as the standard

which the [trial court] must apply in deciding

abuse cases. Prima facie evidence is not the

standard that establishes the child has been abused,

which must be established by clear and convincing

evidence; it is the standard by which the court

determines whom the abuser would be in a given

case. There is no conflict, constitutional or otherwise,

with the clear and convincing evidence standard

imposed by the Act to establish child abuse. 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. We find no defect in this

reasoning. 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.

It is not equivalent to a finding of guilt in a criminal

proceeding which could result in deprivation of

freedom. Thus[,] the [L]egislature has balanced the

needs of society and children for protection against

the abuser’s possible patterned behavior and his/her

right to freedom unless found guilty beyond a

reasonable doubt.

Id. at 1024. See [In the Interest of] L.Z., [supra,] 111 A.3d at

1184 (“The Legislature, however, carved out a very limited

exception to these more stringent evidentiary standards, allowing

for the possibility of identifying the perpetrator of abuse based on

prima facie evidence in cases where the abuse is “of such a nature

as would ordinarily not be sustained or exist except by reason of

the acts or omissions of the parent[.]”).

Under Section 6381(d), a parent or other responsible

caregiver may rebut the prima facie presumption with evidence:

[d]emonstrating that the parent or responsible person

did not inflict the abuse, potentially by testifying that

- 14 -

J-S19032-22

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...[DHS]…and the rebuttal of the parent or

responsible person.

[In the Interest of] L.Z., [supra,] 111 A.3d at 1185….A parent

does not actually have to be physically present with the child at

the time of the abuse for the presumption to apply to that parent.

Id. at 1185-86.

In the Interest of C.B., 264 A.3d at 770-73 (emphasis omitted) (bold in

original) (footnotes omitted) (footnote added) (quotation and citations

omitted).

In addressing Father’s claim that the evidence insufficiently established

that G.M. was the victim of child abuse and Father was the perpetrator of the

abuse, the trial court relevantly indicated the following:

[The trial court] determined that…child abuse was

supported by clear and convincing evidence. [The trial court]

heard credible testimony from DHS Supervisor, Ms. Michelle

Ludwig, that the Children’s welfare and safety were at risk in

Father’s care. Ms. Ludwig testified that in June 2020, DHS

received a GPS report alleging that the Children’s sibling, G.M.,

passed away. At the time of the June 2020 [CPS] report, In-Home

Services had already been implemented after N.M.M. tested

positive for marijuana at birth. Following the June 2020 [CPS]

report, Ms. Ludwig testified that DHS received two (2) CPS reports

on November 25, 2020, and February 5, 2021, containing

allegations of child abuse in connection to G.M.’s death.

Specifically, the November 25, 2020, CPS report alleged that G.M.

sustained a healing rib fracture consistent with child abuse. The

February 5, 2021, [CPS] report alleged that G.M. also sustained

head and brain trauma prior to her death. Both CPS reports

indicated Mother and Father as the perpetrators of abuse of the

victim child, G.M.

- 15 -

J-S19032-22

Ms. Ludwig further testified that, throughout her

investigation, Father was never able to provide an explanation for

how G.M. sustained the injuries. Ms. Ludwig further testified that

Mother and Father were the primary caregivers for G.M., and no

other caregivers were identified for G.M. Ms. Ludwig stated that,

when she concluded her investigation, DHS had active safety

concerns for [N.M.M. and M.M.] based on G.M.’s indicated and

unexplained injuries, and that removal from Mother’s and Father’s

care was necessary to ensure the Children’s safety and well-being.

Current CUA Case Manager, Ms. Olivia Robinson, also expressed

present safety concerns for the Children in Mother’s and Father’s

care given G.M.’s unexplained injuries.

Ms. Ludwig’s testimony was corroborated by Acting Chief

Medical Examiner, Dr. Albert Chu. Dr. Chu testified that G.M.’s

autopsy revealed evidence of a healing rib fracture, which likely

occurred “a few weeks” prior to her death. Dr. Chu credibly

testified that neither G.M.’s premature birth, CPR administered at

the time of death, nor co-sleeping with her twin could have caused

this type of injury. Dr. Chu also testified that, based on G.M.’s

age, this injury could not have been self-inflicted. Dr. Chu

testified that G.M.’s rib injury was most consistent with inflicted

trauma. Dr. Chu further testified that G.M.’s autopsy also

revealed old head and brain injuries. Dr. Chu described the

various ways this type of brain injury can occur, including birth

trauma, blunt force trauma, shaking, or due to a fall, car accident,

or other traumatic incident. Dr. Chu testified that the M.E. has no

medical documentation to account for G.M.’s brain injuries.

However, Dr. Chu further testified that there was no indication of

any birth trauma, which may have caused the brain injuries, and

[the] M.E. has no documentation that G.M. was involved in a fall,

car accident, or other traumatic incident. Dr. Chu also testified

that the M.E. office found that G.M.’s brain injuries were blunt

impact injuries.

G.M.’s rib fracture and brain injuries sustained prior to her

death greatly concern [the trial court]. The indicated CPS reports

from November 25, 2020, and February 5, 2021, stated that G.M.

sustained injuries consistent with child abuse while in the primary

care of Mother and Father. Additionally, Father [has been unable]

to provide a plausible explanation for the cause of G.M.’s

injuries….Dr. Chu testified that CPR administered at the time of

death could not have caused G.M.’s rib fracture because it was a

healing injury, which likely occurred a “few weeks” prior to her

death. Dr. Chu also testified that, because G.M. was four months

- 16 -

J-S19032-22

old at the time of her death, she could not have caused this type

of injury to herself, nor could the injury have been caused by co-

sleeping with her twin. Dr. Chu provided credible testimony that

G.M.’s rib fracture was likely caused by abuse. Although Dr. Chu

could not provide a definitive explanation for how G.M. sustained

the head and brain injuries, he testified that there was no evidence

that these injuries were caused by birth trauma or involvement in

a traumatic accident. While the cause and manner of G.M.’s death

were undetermined, her death was not ruled natural or accidental.

The testimony also reflected outstanding dependency issues

regarding a history of substance use and domestic violence.

Father’s inability to provide an explanation for how G.M. was

seriously injured and later died in his care is evidence of

dependency[,] child abuse[,] [and remains a barrier to

reunification with N.M.M. and M.M. at this time].

[B]ecause the trial court determined that G.M. was the

victim of child abuse, it did not abuse its discretion in finding that

the Children also lacked proper parental care and control by

Father. While [N.M.M. and M.M.] did not suffer any injuries,

Father’s acts or omissions regarding the abuse of G.M. placed the

Children’s health, safety, and welfare at risk.

After hearing the evidence presented, the trial court found

that DHS had shown by clear and convincing evidence that the

Children were dependent and without proper parental care.

Proper parental care was not immediately available due to the

injuries G.M. sustained while in Mother’s and Father’s care[,] and

Father’s inability to provide a plausible explanation for the injuries.

***

[W]hile the petitioning party in a dependency action must

demonstrate the existence of child abuse by clear and convincing

evidence, the identity of the abuser need only be established by

prima facie evidence. Under Section 6381, the fact of abuse is

sufficient [to] establish prima facie evidence of abuse by the

parent or person responsible for the child’s welfare….Specifically,

the CPSL establishes the following rebuttable evidentiary

presumption for finding child abuse by a parent or person

responsible for the Child’s care:

Evidence that a child has suffered child abuse of

such a nature as would ordinarily not be sustained or

exist except by reason on 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

- 17 -

J-S19032-22

by the parent or other person responsible for the

welfare of the child.

23 Pa.C.S.A. § 6381(d).

***

Applying 23 Pa.C.S.A. § 6381(d) and the relevant law to this

case, the [trial court] properly determined that Father was the

perpetrator of the abuse. The victim child, G.M., was in the

primary care and control of only Mother and Father during the

time the injuries were discovered. Additionally, medical evidence

from G.M.’s autopsy demonstrated that the injuries sustained

were “of such a nature as would not ordinarily be sustained or

exist except by reason of the acts or omissions of the parent.” 23

Pa.C.S.A. § 6381(d). Specifically, the two indicated CPS reports

from November 25, 2020, and February 5, 2021, stated that

G.M.’s injuries were consistent with child abuse. Mother and

Father were the named perpetrators of abuse on the indicated CPS

reports. Dr. Chu testified that G.M.’s rib injury was most

consistent with inflicted trauma from abuse. The M.E. found that

G.M.’s brain injuries were blunt impact injuries. While the cause

and manner of G.M.’s death were “undetermined,” G.M.’s death

was not ruled natural or accidental.

Based on…the rebuttable presumption defined in 23

Pa.C.S.A. § 6381(d), [the trial court] properly determined that

prima facie evidence existed to determine that Father was the

perpetrator of abuse. Father has been unable to provide an

explanation as to how G.M. could have sustained the rib fracture

and brain injuries. The evidence clearly established that Mother

and Father were the primary caregivers for G.M. at the time of her

death and that G.M.’s injuries occurred while G.M. was in their

care. G.M. sustained injuries of such a nature that would not

ordinarily be sustained but for the acts or omissions of the person

responsible for the welfare of the child. While [the trial court] was

unable to determine which parent perpetrated the abuse, it

properly found that Father perpetrated the abuse by omission

even if he did not inflict any of the injuries. [The trial court] also

properly determined that Father failed to rebut the evidentiary

presumption in Section 6381(d) by failing to present evidence

establishing that G.M. was not in his care when the injuries

occurred, or that he had no reason to believe that G.M. would be

unsafe in Mother’s care.

Trial Court Opinion, filed 3/4/22, at 14-20 (citations and footnote omitted).

- 18 -

J-S19032-22

We find no abuse of discretion or error of law in the trial court’s

reasoning. Specifically, contrary to Father’s argument, we agree with the trial

court that DHS established by clear and convincing evidence that G.M. was a

victim of “child abuse” as defined by the CPSL. Medical testimony established

that the four-month-old infant, G.M., suffered rib, head, and brain injuries,

which were the result of non-accidental trauma that occurred while Father was

responsible for G.M.’s welfare. See In the Interest of C.B., supra.

Moreover, Father could not provide an explanation of how the injuries

occurred.

Under these facts, the trial court properly applied the evidentiary

presumption found at 23 Pa.C.S.A. § 6381(d), which establishes a prima facie

case of abuse by the persons who were responsible for the child when the

abuse occurred, and properly found Father failed to rebut this presumption.

See In the Interest of C.B., supra.10

____________________________________________

10 Similar to the case sub judice, in In the Interest of C.B., supra, DHS

established, by clear and convincing evidence, that a five-month-old infant

suffered injuries that were neither accidental nor self-inflicted and were of

such a nature that they would not ordinarily be sustained except by reason of

the acts or omission of the parent or other person responsible for the infant’s

welfare. This Court held the trial court properly found the infant was the victim

of “child abuse” as defined by the CPSL. Id. at 776. We further held the trial

court properly applied the Section 6381(d) presumption since the parents

were the primary caretakers of the infant, and the parents failed to rebut the

presumption by establishing the infant was not in their care when he suffered

his injuries. See id.

- 19 -

J-S19032-22

As this Court has held, the rebuttable presumption is necessary to

ensure the safety of a child (and the child’s siblings) when the child has been

under her parents’ care, has been abused, and the identity of the perpetrator

cannot be established. See id.

In essence, [the rebuttable presumption] forces caregivers either

to come forward with the identity of the perpetrator of abuse or

be assigned fault where it was their responsibility to care for the

child and keep the child safe. As emphasized by our Supreme

Court…“when a child is in the care of multiple parents or other

persons responsible for care, those individuals are accountable for

the care and protection of the child whether they actually inflicted

the injury or failed in their duty to protect the child.”

In the interest of C.B., 264 A.3d at 778 (quoting In the Interest of L.Z.,

supra, 111 A.3d at 1185) (citation omitted).

Accordingly, for all of the aforementioned reasons, we conclude the trial

court properly found that Father was a perpetrator of child abuse under

Section 6381(d).

Regarding Father’s challenge to the trial court’s adjudication of N.M.M.

and M.M. as dependent, he claims that, since G.M. was not a victim of child

abuse and/or Father was not a perpetrator of the abuse, the trial court’s

dependency determination is erroneous. However, having found Father was

a perpetrator of abuse as to G.M., we find his issue challenging the trial court’s

adjudication of dependency as to N.M.M. and M.M. moot. See In the Interest

of C.B., supra (finding moot the parents’ challenge to trial court’s

adjudication of dependency as to multiple children where trial court found

parents perpetrators of abuse as to one child); In the Interest of R.P., 957

- 20 -

J-S19032-22

A.2d 1205, 1213 (Pa.Super. 2008) (stating where trial court finds one sibling

abused, court may determine other siblings dependent, even if they have not

been abused).

Regarding Father’s averment that, after the trial court adjudicated

N.M.M. and M.M. dependent, the trial court erred in its disposition of placing

the Children in the custody of DHS and Kinship Care, we disagree.11 Father

argues the trial court erred since its determination was made based on an

erroneous finding that G.M. suffered abuse and Father was a perpetrator of

the abuse. However, as indicated supra, we hold the trial court did not err in

its finding of child abuse perpetrated by Father. Thus, Father is not entitled

to relief on this claim. See In the Interest of R.P., supra.

In his next issue, Father contends the trial court erred in holding that

aggravated circumstances existed as to Father. Specifically, he avers that,

since there was no evidence G.M. suffered abuse and/or that Father was a

perpetrator of the abuse, the trial court also erred in finding that aggravated

circumstances existed as to Father. However, as indicated supra, we hold the

____________________________________________

11 If the court finds that a child is dependent, then the court may make an

appropriate disposition of the child to protect the child’s physical, mental and

moral welfare, including allowing the child to remain with the parents subject

to supervision, transferring temporary legal custody to a relative or public

agency, or transferring custody to the juvenile court of another state. 42

Pa.C.S.A. § 6351(a). In re D.A., 801 A.2d 614 (Pa.Super. 2002) (en banc),

Here, the trial court determined it was in the best interest of N.M.M. and M.M.

to remove them from their parents’ care and place them with paternal

grandmother through Kinship Care.

- 21 -

J-S19032-22

trial court did not err in its finding of child abuse perpetrated by Father. Thus,

Father is not entitled to relief on this claim. 12 See In the Interest of R.P.,

supra.

Father next contends the trial court erred in permitting Michelle Ludwig,

a DHS supervisor, to offer inadmissible hearsay testimony.13 Father contends:

____________________________________________

12 If the trial court adjudicates a child dependent, and either the county agency

or the child’s attorney has alleged aggravated circumstances exist, the court

must then determine the veracity of those allegations. See 42 Pa.C.S.A. §§

6341(c.1), 6351(e)(2). If the court finds by clear and convincing evidence

that aggravated circumstances do exist, it must consider whether reasonable

efforts to prevent or eliminate the need to remove the child or to preserve and

reunify the family should be made or continue to be made. See id.

In the case sub judice, the trial court found “aggravated circumstances”

existed under the following circumstances:

(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.

42 Pa.C.S.A. § 6302(2) (defining “aggravated circumstances”). The trial court

directed efforts shall continue to be made to preserve the family and reunify

N.M.M. and M.M. with Mother and Father.

13We have held:

Questions concerning the admissibility of evidence are within the

sound discretion of the trial court[,] and we will not reverse a trial

court’s decision concerning admissibility of evidence absent an

abuse of the trial court’s discretion. An abuse of discretion is not

merely an error of judgment[ but, rather, is] the overriding or

misapplication of the law, or the exercise of judgment[,] that is

manifestly unreasonable, or the result of bias, prejudice, ill-will[,]

or partiality, as shown by the evidence of record. If in reaching a

conclusion the trial court overrides or misapplies the law,

discretion is then abused[,] and it is the duty of the appellate court

to correct the error.

Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa.Super. 2020) (citation

omitted).

- 22 -

J-S19032-22

“As a general rule Hearsay (pursuant to exceptions) has been, and always is

regarded as inadmissible. Here, the testimony of DHS supervisor Ludwig

contained within [it] a number of references to matters it would be professed

to have been made of court.” Father’s Brief at 21 (citing Pa.R.E. 802).

Father then lists in his brief references to the following bolded portions

of Ms. Ludwig’s direct examination by DHS’s counsel:

Q: What did you do when your team received the GPS report

in June of 2020?

***

A: For the GPS report in June, at that point it was ruled that

preliminarily there were injuries noted. However, they could not

rule out—there was a rib fracture, and we could not rule out that

it was not caused in transport or in CPR, so at that time, the GPS

report was invalid as there was no other signs that were—the

autopsy was not completed yet[.]

Q: Okay. Did you receive any additional…reports for this

family?

A: Yes. We did.

Q: When did you receive your next reports?

A: November 25, 2020.

Q: And what type of report was this?

A: So that was a CPS report for serious physical injury,

noting that [G.M.], in completing—in halfway completing

the autopsy report, that she had a rib fracture that was

consistent with child abuse.

[MOTHER’S COUNSEL]: Objection. Move to strike.

[FATHER’S COUNSEL]: Objection. Objection—move…I

would support the objection of [Mother’s counsel].

[MOTHER’S COUNSEL]: It calls for a—it calls for [a] medical

conclusion. Your Honor, and that’s the basis of the—my initial in—

or initial discussion with the Court. I do not find that this witness

is capable of testifying to medical conditions.

THE COURT: Overruled.

- 23 -

J-S19032-22

***

Q: I’m showing you what’s marked as DHS Exhibit 2. Do

you recognize this document?

A: I do.

Q: And what is the document?

A: It’s CY-48.

Q: And what is a CY-48?

A: This is the report that is sent back to the state with the

determination of findings for the investigations that we’ve

completed.

Q: Okay. An [sic] in particular—so this document, does your

name appear on this document?

A: It does on page 3.

Q: Okay. And as a supervisor for an investigation, do you

complete or assist the worker to—to complete this form?

A: Yes.

Q: Okay. And specifically, as it relates to this document on

page 2, what is the outcome explanation that you submitted to

the state?

A: The outcome explanation—

[FATHER’S COUNSEL]: Again, objection.

THE COURT: Basis, counsel?

[FATHER’S COUNSEL]: It’s—it’s hearsay.

The…witness here has no personal knowledge of—of the

conclusion…Again,…based on my objection is if the investigator

has no direct knowledge of—of what she—what the investigator is

drawing her conclusion from. It’s clearly a medical determination.

We will be hearing from the doctor. And that would be the basis

for my objection.

THE COURT: Overruled. [DHS’s Counsel], please

proceed.

[DHS’S COUNSEL]: Thank you.

Q: On page 2 of [CY-48] that you submitted to the state,

please?

[A]: “CPS” report is indicated on both mother and

father. Victim child suffered a posterior third rib fracture

- 24 -

J-S19032-22

that is the cause of trauma and consistent with child abuse

neither---according to Dr. Emery—neither Mother—sorry—

neither Mother nor Father could explain the injuries to the

child when asked.”

Q: Thank you.

***

Q: Okay. And on page 2, can you please state the outcome

that was submitted to the state regarding this report?

A: Sure. CPS report [w]as indicated as child has injuries

that are consistent with trauma or child abuse. The—

[FATHER’S COUNSEL]: Again, I—I want—objection to

the testimony and—

THE COURT: Overruled.

A: The MEO reviewed medical records to ensure the injuries

ere noted from birth or her—victim child’s extensive stay in

NICU after birth. Child was also born vaginally and—and

was baby B of twin girls. There’s no noted trauma from

birth. The Mother and Father were the sole caregivers of

the victim and cannot explain the injuries. The child was

not old enough for the injuries to be considered accidental.

The injuries cannot be ruled to—to the cause of death to

the child; however, they are consistent with trauma and

child abuse.

N.T., 1/14/22, at 16-17, 24-27, 33-34 (bold added).14 See Father’s Brief at

21-22.

____________________________________________

14 Father also challenges on appeal the following bolded portion of Ms.

Ludwig’s direct examination on the basis it was inadmissible hearsay:

Q: And who were the perpetrators that DHS determined to

have caused this abuse?

A: Mother and Father.

Q: And who was the victim child?

A: [G.M.]

[DHS’s COUNSEL]: Your Honor, may I approach the

witness?

(Footnote Continued Next Page)

- 25 -

J-S19032-22

Initially, we note that, in developing his two-page argument on appeal,

Father provides the list of excerpts supra from Ms. Ludwig’s direct examination

and baldly claims the testimony is hearsay. He then suggests that, since the

testimony is hearsay, we must reverse the trial court’s orders finding child

abuse perpetrated by Father since such orders may not be based materially

on hearsay alone. See Father’s Brief at 22 (citing AY v. Com., Dept. of

Public Welfare, 537 Pa. 116, 641 A.2d 1148 (1994)).

However, aside from Father’s conclusory contention that the

aforementioned excerpts of testimony are inadmissible hearsay, Father has

____________________________________________

THE COURT: You may.

N.T., 1/14/22, at 24 (bold added). See Father’s Brief at 21.

As is evident, Father did not lodge an objection to this testimony at trial,

and therefore, his appellate challenge based thereon is waived. See Pa.R.A.P.

302(a) (“Issues not raised in the trial court are waived and cannot be raised

for the first time on appeal.”). In any event, Father cannot demonstrate that

he was prejudiced by this specific excerpt of testimony since Ms. Ludwig

testified several times, without objection, that G.M. was the victim of child

abuse and Father/Mother were the alleged perpetrators of the abuse. See

N.T., 1/14/22, at 19 (Ms. Ludwig testified G.M. was the victim child of the CPS

report and Father/Mother were the alleged perpetrators); at 29 (same); at 30

(same); at 31-32 (Ms. Ludwig testified neither Mother nor Father offered an

explanation for G.M.’s head trauma, and neither parent indicated anyone else

who may have been caring for G.M. as it relates to this particular injury). See

generally In re A.J.R.-H, 647 Pa. 256, 188 A.3d 1157 (2018) (holding

where, in light of the record as a whole, an erroneous evidentiary ruling could

not potentially have affected the decision to terminate a parent's rights to his

or her child, an error is harmless and the parent is not entitled to a new

hearing; holding harmless error doctrine may be applied by a reviewing court

if the established facts support a legal conclusion producing the same

outcome).

- 26 -

J-S19032-22

not developed his claim. That is, Father baldly claims the testimony is hearsay

without any discussion of the relevant hearsay rules or exceptions thereto.

It is well-settled that the failure to develop an adequate argument in an

appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007) (en

banc) (citation omitted). “[A]rguments which are not appropriately developed

are waived.” Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.Super. 2006)

(citations omitted). “When issues are not properly raised and developed in

briefs, or when the briefs are wholly inadequate to present specific issues for

review, a Court will not consider the merits thereof.” Commonwealth v.

Maris, 629 A.2d 1014, 1017 (Pa.Super. 1993).

Here, Father’s mere listing of excerpts from Ms. Ludwig’s testimony and

baldly contending the excerpts constitute inadmissible hearsay without

appropriate discussion of relevant authority, precludes us from conducting

meaningful appellate review of his claim. In re W.H., 25 A.3d 330, 339 n.3

(Pa.Super. 2011) (“[W]here an appellate brief fails to provide any discussion

of a claim with citation to relevant authority or fails to develop the issue in

any other meaningful fashion capable of review that claim is waived.”). Thus,

we find Father’s issue to be waived.

In any event, we note the portions of Ms. Ludwig’s testimony to which

Father refers are cumulative of the extensive expert testimony offered by

Chief Medical Examiner Dr. Albert Chu, whose testimony Father does not

- 27 -

J-S19032-22

challenge on appeal. See N.T., 1/14/22, at 63-124 (Dr. Chu testified G.M.

sustained a rib fracture and opined to a reasonable degree of medical certainty

the injury resulted from trauma and abuse; there are no medical records

indicating the injuries sustained by G.M. were birth related; the injuries were

not accidental and G.M. was too young to cause the injuries to herself).

Moreover, the portions of Ms. Ludwig’s challenged testimony relating to

Father and Mother being unable to explain G.M.’s injuries, as well as being the

caregivers to G.M., is cumulative of the testimony offered by the CUA case

manager, Olivia Robinson,15 as well as numerous unobjected to portions of

Ms. Ludwig’s testimony. Id. at 132 (Ms. Robinson admitted she had concerns

for N.M.M. and M.M. since G.M. was injured while in her parents’ care and

parents were unable to provide an explanation); at 16 (Ms. Ludwig testified,

without objection, that G.M., M.M., and N.M.M. were in the care of Mother and

Father in June of 2020); at 21-22 (Ms. Ludwig testified, without objection,

that neither Mother nor Father provided an explanation during the

investigation as to how G.M. sustained her rib injury); at 23 (Ms. Ludwig

testified, without objection, that, aside from Mother and Father, there were

no other caregivers identified for G.M.); at 31-32 (Ms. Ludwig testified,

without objection, that neither Mother nor Father offered an explanation for

G.M.’s head trauma, and neither parent indicated anyone else who may have

____________________________________________

15 We note Ms. Robinson was called as a witness by Mother.

- 28 -

J-S19032-22

been caring for G.M. as it relates to this particular injury). Thus, we conclude

the trial court’s challenged rulings as to Ms. Ludwig’s testimony was, at most,

harmless error in the context of the court’s determinations. See In re A.J.R.-

H, supra.

Father next challenges Ms. Ludwig’s testimony that the determination

of various reports, including the CPS reports, were “Indicated.” Father’s entire

appellate argument in this regard is as follows:

The testimony regarding the reports having been

“Indicated” it is maintained would have constituted inadmissible

hearsay, having been created from an [sic] out of court source.

Notwithstanding, [Father] would submit any consideration of the

characterization (as to a report having been indicated) as being

confined to merely opinion only, and not be viewed as dispositive.

Father’s Brief at 22-23.

We find this issue to be waived. Father has failed to develop an

adequate argument with citation to, or discussion of, proper authority. See

Beshore, supra; Lackner, supra. His failure to develop the argument

prevents meaningful appellate review, and thus, we decline to address this

claim further. See Maris, supra.

In his final claim, Father contends the trial court erred in admitting into

evidence unredacted DHS Exhibit Numbers 1, 2, 3, 4, and 7. Specifically, he

challenges the following portions of the Exhibits (verbatim):

Exhibit 1 pg. 5 (middle) “…old healing rib fracture and based

on the area of the rib fracture, it is consistent with child abuse.”

Exhibit 2 pg. 2 “…posterior 3rd rib fracture that is the cause of

trauma and consistent with child abuse according to Dr. Emery.”

Exhibit 3 pg. 1 (middle) “…the rib fracture is for sure abuse…only

- 29 -

J-S19032-22

explanation for head injury as being inflicted trauma…” Exhibit 4

pg. 2 “CPS report is indicated at [sic] child has injuries that are

consistent with trauma or child abuse…Child was not old enough

for the injuries to be considred [sic] accidental.” Exhibit 7 pg. 2

“…As such, non-accidental head trauma is favored, although the

precise mechanism cannot be determined. In addition, the

presence of a healing posterior rib fracture, occurring

approximately two to three weeks prior to her death, ia [sic] a

harbinger of abusive injury (occurring at a separate time from the

head injuries).”

Father’s Brief at 23-24.

Aside from listing the above excerpts from the Exhibits, Father’s entire

appellate argument is as follows (verbatim):

It is well understood that Hospital/Medical records may be

admissible into evidence pursuant to the Business Records

Exception. See 225 Pa.C.S. section 803(6). However, relying on

the Autopsy Report alone without having called the Medical

Examiner to testify constituted reversible error. Commonwealth

v. McCloud, [457 Pa. 310], 322 A.2d 653 (1974).[16] See also

Commonwealth v. Carter, 861 A.2d 957 ([Pa.Super.] 2004)[17]-

standing for the principle that opinions, diagnoses and conclusions

contained in hospital or medical records are not admissible under

the business records exception.

***

____________________________________________

16 In McCloud, our Supreme Court held “that in a homicide prosecution,

evidentiary use, as a business records exception to the hearsay rule, of an

autopsy report in proving legal causation is impermissible unless the accused

is afforded the opportunity to confront and cross-examine the medical

examiner who performed the autopsy, absent a compelling necessity.”

McCloud, supra, 322 A.2d at 656-57.

17We note that this Court’s opinion in Commonwealth v. Carter, 861 A.2d

957 (Pa.Super. 2004), to which Father cites, was reversed by our Supreme

Court in Commonwealth v. Carter, 593 Pa. 562, 932 A.2d 1261 (2007),

which held that a police crime lab report fell within the business record

exception to the hearsay rule.

- 30 -

J-S19032-22

All of these [listed portions of the Exhibits] it is submitted

would have fallen within the realm of medical opinion; and thus,

[Father] would aver them to have been inadmissible.

Father’s Brief at 23-24 (footnotes added).

Preliminarily, we note that Father has not identified the type of Exhibits

at issue. In any event, we note that Exhibit 1 is a CPS report dated 11/25/20,

Exhibit 2 is a CPS Investigation Report, Exhibit 3 is a CPS report dated 2/5/21,

Exhibit 4 is a CPS Investigation Report, and Exhibit 7 is the medical examiner’s

autopsy reports.

As is evident from Father’s appellate argument, Father focuses his

argument on whether “hospital/medical records” or “autopsy reports” are

admissible pursuant to the business records exception. Father’s Brief at 23.

He presents no developed argument or cites to any relevant authority as it

relates to the proper admission of CPS reports under the business records

exception. See In the Interest of R.G., No. 1047 EDA 2019, 2020 WL

734046, at *6 (Pa.Super. filed 2/12/20)18 (“In dependency matters, reports

such as the CPS report may be admissible under the business records

exception outlined in Pa.R.E. 803(6).”). Accordingly, we find waived Father’s

challenge to the CPS reports. See Pa.R.A.P. 2119 (indicating an appellant

____________________________________________

18 Pursuant to Pennsylvania Rule of Appellate Procedure 126, unpublished,

non-precedential memorandum decisions of the Superior Court filed after May

1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).

- 31 -

J-S19032-22

must develop an argument with citation to relevant authority); Beshore,

supra; Lackner, supra.

Regarding Father’s contention that portions of Exhibit 7, relating to the

autopsy report, should have been redacted or excluded, we find no relief is

due. Father challenges the following portion of the autopsy report:

As such, non-accidental head trauma is favored, although the

precise mechanism cannot be determined. In addition, the

presence of a healing posterior rib fracture, occurring

approximately two to three weeks prior to her death, ia [sic] a

harbinger of abusive injury (occurring at a separate time from the

head injuries).

Father’s Brief at 23-24 (quoting DHS Exhibit 7 pg. 2). Father contends the

cited portions constitute inadmissible hearsay.

Assuming, arguendo, Father is correct, we conclude the trial court’s

admittance of the evidence was, at most, harmless error in the context of the

court’s determinations. See In re A.J.R.-H, supra. Specifically, Dr. Chu,

whose expert testimony Father does not challenge on appeal, testified at

length regarding G.M.’s head and rib injuries, and he testified to a reasonable

degree of medical certainty that the injures resulted from inflicted trauma or

abuse. See N.T., 1/14/22, at 63-124. Further, Ms. Robinson, who was offered

as a witness by Mother, admitted she had safety concerns for N.M.M. and M.M.

since G.M. sustained injuries, which could not be explained by Mother or

Father. Id. at 131-32. Thus, Father is not entitled to relief.

For all of the aforementioned reasons, we affirm.

Affirmed.

- 32 -

J-S19032-22

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2022

- 33 -