finding that a trial court erred in failing to qualify an expert witness but not reversing on that issue because the appellant failed to show prejudice
How later courts described this case
- finding that a trial court erred in failing to qualify an expert witness but not reversing on that issue because the appellant failed to show prejudice
Written by the judges who cited it.
The opinion
J-A19031-23
2023 PA Super 235
IN THE INTEREST OF: S.A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: DEPARTMENT OF :
HUMAN SERVICES :
:
:
: No. 504 EDA 2023
Appeal from the Order Entered February 8, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000554-2022
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED NOVEMBER 13, 2023
The Philadelphia Department of Human Services (DHS) appeals from
the order entered in the Court of Common Pleas of Philadelphia County (trial
court) dismissing its petition for dependency of S.A.S. (Child, d.o.b. 8/21) and
finding S.S. (Mother) and C.C. (Father) (collectively, Parents) did not abuse
Child. DHS also challenges the trial court’s decision not to certify Dr. Zachary
Miller as an expert in child abuse medicine. Because we conclude that DHS
presented clear and convincing evidence to support dependency and child
abuse, we reverse and remand.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A19031-23
I.
A.
DHS received a Child Protective Services (CPS) report on March 28,
2022, “alleging that bodily harm had been caused to [Child] through a recent
act/failure to act.” (Dependency Petition, 6/10/22, at ¶ 5(b)). Specifically,
that seven-month-old Child had presented at the Children’s Hospital of
Philadelphia (CHOP) Emergency Department with multiple unexplained
fractures and the CHOP team suspected abuse. On June 10, 2022, DHS filed
a dependency petition (Petition) alleging that “the child is at risk of further
abuse and/or neglect in the care of the parents.” (Id. at ¶ 6). After multiple
continuances, a hearing was held on February 8, 2023. DHS supervisor Cheryl
Priest, Turning Points Community Umbrella Agency (CUA) case manager
Liberty Bruce, and pediatrics expert Dr. Zachary Miller testified on behalf of
DHS. Parents did not testify or present any evidence.
B.
Ms. Priest testified that DHS received the CPS report on March 29, 2022,
that alleged Child presented to the CHOP emergency room and upon
examination, was discovered to have multiple fractures and bruising on her
wrist, ribs and elbows that were determined to be non-accidental. The report
was indicated against Child’s Parents, with Child as the named victim and
Parents and the maternal great-grandmother as the perpetrators. The CPS
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report stated that the Parents caused bodily injury to Child through a recent
act or failure to act.
Mother told DHS that two weeks prior to bringing Child to CHOP, she
became aware of an issue when Child’s maternal aunt noticed that Child’s
arms looked a little different. From that point on, Mother paid more attention
to the appearance of Child’s arms, ultimately bringing her to CHOP. She had
no explanation for the fractures. When asked whether Father had any
explanation for Child’s injuries, Ms. Priest said he did not, but that he
“mention[ed] he had been co-sleeping with [Child] during the times that he
was watching her when they would take naps or whatever, but that was the
only explanation that he had.” (N.T., 2/08/23, at 13). Parents did not identify
any other caregivers for Child other than themselves and maternal great-
grandmother.
On cross-examination, Ms. Priest stated that the Parents showed
appropriate concern for Child’s well-being and cooperated with the DHS
investigation. Mother had no prior history with DHS before the March 2022
report. At the time of the DHS investigation, Mother was attending school
Monday through Friday from 8:00 a.m. to 3:00 p.m. During those periods,
Child was with Father and maternal great-grandmother. Several weeks before
the injury was reported, Father began a new job with a schedule that mirrored
Mother’s, so maternal great-grandmother cared for Child during these eight
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hours. Ms. Priest testified that a home assessment had been completed and
the Parents’ home was appropriate for Child.
C.
Ms. Bruce testified that she is the CUA case manager for Child. Child
has been living with her paternal aunt since the reports came in and has not
suffered any new broken bones or other injuries since she has been out of
Parents’ care. Mother suggested to Ms. Bruce that maybe Child’s injuries
occurred because she had tripped on the stairs with Child in her car seat and
had to bend her arm to put on her jacket. Father had no explanation for the
fractures. Parents engaged in regular visits supervised by paternal aunt and
were cooperative with meeting Child’s needs, with Mother being the parent
who was primarily involved. Mother had participated in case planning
meetings, and Parents had completed a parenting class. When asked if she
saw any dependency issues with Parents other than the injuries, Ms. Bruce
responded, “I suppose not.” (N.T., at 55).
D.
1.
Dr. Miller testified that he has been trained as a pediatric physician and
is on the child protection team at CHOP. His training included four years of
medical school, a three-year pediatric residency and, at the time of the
hearing, he was in the CHOP fellowship program for child abuse pediatrics,
having completed one-and-a-half years of the three-year program. He has
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conducted trainings on pediatrics and child abuse and has had specific training
in identifying child abuse. Although he is not board certified in child abuse
pediatrics, he will be eligible for board certification at the end of his fellowship
training.
Dr. Miller has been involved in over 100 consultations involving child
abuse concerns, with a minority of those cases having a very high degree of
concern and a substantial number being of little to no concern. He also
receives continuing education on identifying child abuse or nonaccidental
injuries. All of the tests and methods he used in this case are supported by
peer-reviewed scientifically supported data and he has been authorized as an
expert in approximately ten or eleven cases.
Mother and Father’s counsel both objected to Dr. Miller being certified
as an expert in child abuse pediatrics because he is not yet board certified in
the specialty. The court agreed and certified Dr. Miller as an expert in
pediatrics but not child abuse.
2.
Dr. Miller testified that he met Child on the inpatient unit at CHOP when
he performed her examination and consultation. Child’s presenting issue was
an abnormal appearance of the right arm and the difference in how the arms
were being used, but there was no bruising. Multiple fractures were identified.
The x-ray of Child’s right arm identified a fracture of the distal humerus (bone
of the upper arm near the elbow at the elbow). Child did not have any history
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that would explain how this fracture occurred. The standard procedure in
these circumstances is to perform an evaluation, including a skeletal survey
and x-rays, for any other injuries that had not been identified. Child’s skeletal
survey identified an additional healing fracture of the left humerus and of the
left sixth rib.
Child was rolling over but not ambulatory. She was developmentally
“on track” and Dr. Miller did not observe any behavior that was abnormal for
her age. (N.T., at 28). Mother was unable to provide any explanation for the
fractures other than Father played rambunctiously with Child, but nothing
unusual. She told Dr. Miller that when Child was approximately two to three
months’ old, she noticed Child using her right arm a little differently than the
left, but family members reassured her about it. It was not until maternal
aunt mentioned that Child’s right elbow looked slightly different that Mother
started noticing it herself and brought Child to CHOP.
Dr. Miller explained that the fractures were healing since the x-rays
showed new bone forming. The signs of healing would begin to appear
approximately ten to fourteen days after the humerus injury and seven to ten
days after the injury to the rib. The right arm fracture was visible in a
photograph as “a little bit of curvature” on the inner part of her elbow. (N.T.,
at 29); (see DHS Exhibit 5, photograph “O”).
CHOP tested Child for other bone conditions that could have caused her
injuries. Dr. Miller explained that her blood tests for vitamin D and electrolytes
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were normal and that she tested negative for osteogenesis imperfecta (“OI”),
a genetic condition that can predispose a patient to fractures. Dr. Miller also
reviewed the skeletal survey with the radiology team, and they did not identify
any abnormal or unhealthy appearance in her bones. Based on this
evaluation, Dr. Miller concluded that Child had no medical predisposition to
fractures and that her injuries were the result of trauma.
Dr. Miller also stated that as a non-mobile infant, Child could not have
caused the injuries herself, unlike an older child who could walk
independently. He explained that Child’s fractures were concerning for child
abuse because it was an abnormal fracture pattern for a single injury event
like a fall and that most fractures of the rib are the result of inflicted injury.
Dr. Miller stated that this conclusion was supported by the medical literature
regarding the identification of injuries that are indicative of abuse: “This is a
very well-studied phenomenon.” (N.T., at 33).
Dr. Miller noted that Child did not appear to be in pain at the time of his
evaluation since the bones were healing but, when asked if a fracture would
be painful for a child, he stated, “Yes, I would expect that.” (Id. at 34). He
explained that an infant would usually display pain around the time of the
injury by crying or fussiness but was not permitted to answer counsel’s
question about whether a reasonably prudent parent would notice this issue.
The doctor was unsure whether Child was at risk for any loss of mobility due
to her injuries.
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Dr. Miller stated that the CHOP child protection team’s assessment was
that Child’s injuries “were the result of trauma and represented a significant
degree of concern for nonaccidental trauma or inflicted injury.” (Id. at 36);
(see also DHS Exhibit 6, Dr. Miller Report, 4/17/22, at 24) (“With the
information available at this time, the findings remain highly concerning for
inflicted trauma/child physical abuse.”). When counsel asked for Dr. Miller’s
opinion about whether Child’s injuries were the result of child abuse, the court
sustained the objection of Mother’s counsel that the opinion was beyond the
scope of Dr. Miller’s expertise.
On cross-examination by Mother’s counsel, Dr. Miller conceded that
although OI testing identifies “a significant majority” of the genetic variants
of this condition, it does not identify all of them. (N.T., at 40). Father’s
counsel asked Dr. Miller whether Child was tested for rickets and rare bone
fragility syndromes such as Cole Carpenter Syndrome, Bruck Syndrome or
McCune-Albright Syndrome and whether Parents or any relatives were tested
for familial osteoporosis. Dr. Miller responded that Child had vitamin D testing
for rickets, which came back normal. He stated that tests for osteoporosis or
McCune-Albright Syndrome were not indicated. (Familial osteoporosis not
indicated because no family history of fractures; McCune-Albright Syndrome
not tested because Child had no physical abnormalities that would signal that
such testing would be appropriate). Child was not tested for Bruck Syndrome
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and Dr. Miller was unsure what the medical evaluation would be to test for
Cole Carpenter Syndrome.
Dr. Miller explained on re-direct that the syndromes are not part of
CHOP’s testing protocol and he is not familiar with all of them, but that he
would expect to see abnormalities on the x-ray that was performed if any of
them were present.
E.
At the close of the evidence the trial court concluded that DHS did not
meet its burden with respect to child abuse or dependency and discharged the
petition. DHS timely appealed and filed a contemporaneous statement of
errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i).
DHS raises several questions for this Court’s review, which we
consolidate into three. Whether the court (1) abused its discretion in refusing
to certify Dr. Miller as an expert in child abuse pediatrics; (2) abused its
discretion in denying DHS’s request for a finding of child abuse; and (3)
abused its discretion in declining to adjudicate Child dependent where DHS
met its burden of proving child abuse. (See DHS’s Brief, at 3-5).
II.
DHS argues that the trial court abused its discretion in refusing to certify
Dr. Miller as an expert in child abuse pediatrics solely based on the fact that
he is not yet board certified for that specialty because board certification is
not required to be qualified as an expert in a medical field where the doctor
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has extensive experience in it.1 Mother responds that the court did not solely
rely on the lack of board certification and, in fact, explicitly agreed that this is
not a litmus test on the issue. Instead, the court evaluated and weighed the
evidence and determined that Dr. Miller’s experience and qualifications were
insufficient to allow his expert testimony on the specific area of child abuse
pediatrics. Moreover, argues Mother, even if it were error, it is harmless.
A.
Pursuant to Pennsylvania Rule of Evidence 702, an expert may testify:
if scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training or education
may testify thereto in the form of an opinion or otherwise.
Pa.R.E. 702 (emphasis added).
“[T]he standard for qualification of an expert witness is a liberal one.”
Wright v. Residence Inn by Marriot, Inc., 207 A.3d 970, 976 (Pa. Super.
____________________________________________
1 Our standard of review of this issue is very narrow:
The admission or exclusion of evidence, including the admission
of testimony from an expert witness, is within the sound discretion
of the trial court.... [W]e may only reverse upon a showing that
the trial court clearly abused its discretion or committed an error
of law. To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the
complaining party.
In re Estate of Byerley, 284 A.3d 1225, 1239 (Pa. Super. 2022) (citation
omitted).
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2019 (citation omitted). “When a witness is offered as an expert, the first
question the trial court should ask is whether the subject on which the witness
will express an opinion is so distinctly related to some science, profession,
business or occupation as to be beyond the ken of the average layman.”
Wexler v. Hecht, 847 A.2d 95, 99 (Pa. Super. 2013), aff’d., 928 A.2d 973
(Pa. 2007) (citations and internal quotation marks omitted). “If so, the next
question the court should ask is whether the witness has sufficient skill,
knowledge, or experience in that field or calling as to make it appear that his
opinion or inference will probably aid the trier in his search for truth.” Id.
(citations and internal quotation marks omitted). “The witness need not
possess all of the knowledge in a given field but must only possess more
knowledge than is otherwise within the ordinary range of training, knowledge,
intelligence or experience.” Wright, 207 A.3d at 976 (citation and internal
quotation marks omitted). “If he does, he may testify and the weight to be
given to such testimony is for the trier of fact to determine in view of the
expert’s particular credentials.” Id. (citation and internal quotation marks
omitted).
“We have held regarding medical experts that experts in one area of
medicine may be found to be qualified to address other areas of specialization
where the specialties overlap in practice, or where the specialist has had
experience in a selected field of medicine.” Id. (citation omitted). “A witness
having “any reasonable pretension to specialized knowledge on a given
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subject should be allowed to testify as an expert witness even though they
are not the ‘best possible witnesses’ available.” Id. at 978 (citation and
brackets omitted; emphasis in original). “[T]he strength of [the expert]’s
credentials, relevant to the issues in [the] case, goes to the weight of his
testimony, not its admissibility.” Id.
The trial court observed that “board certification is not a litmus test of
qualification to offer an expert opinion.” (Trial Court Opinion, 5/11/23, at 13).
However, after “evaluat[ing] and weigh[ing] the evidence regarding the
training and experience Dr. Miller has acquired to date,” it determined Dr.
Miller’s experience and qualifications were insufficient to admit his testimony
and opinion in the area of child abuse pediatrics. (Id. at 6-7). The record
does not support this decision.
Dr. Miller is a licensed pediatric physician and receives continuing
education on identifying child abuse or nonaccidental injuries. (See N.T., at
19-20). He has conducted trainings on pediatrics and child abuse and has had
specific training in identifying child abuse. (See id. at 19). Dr. Miller has
completed half of his three-year fellowship program on child abuse pediatrics
at the end of which he will be eligible to become board certified in the
specialty. (See id. at 20, 22). Dr. Miller has been involved in over 100
consultations involving child abuse concerns and he has been authorized as
an expert in approximately ten or eleven cases. (See id. at 21). Finally, he
is a fellow physician on the child protection team at CHOP. (See id. at 19).
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Based on this training and experience, it is evident that Dr. Miller has
more knowledge than is otherwise within an ordinary layman’s range of
training, knowledge, intelligence or experience. The strength of his
credentials to testify about child abuse pediatrics goes to the weight of his
testimony, not its admissibility. See Wright, 207 A.3d at 978 (concluding
trial court abused its discretion in precluding medical expert from testifying
where he had a reasonable pretension to specialized knowledge even though
he was not board certified in the specific area). Consequently, we conclude
that the trial court abused its discretion in precluding Dr. Miller from testifying
as a child abuse pediatrics expert at the hearing. However, this does not end
our inquiry because the mere failure to qualify Dr. Miller as a child abuse
pediatrics expert does not mandate a new adjudicatory hearing unless DHS
can show prejudice. See Byerley, 284 A.3d at 1239.
B.
DHS argues that the trial court’s error was not harmless because,
although Dr. Miller testified as an expert pediatrician, he was not allowed to
give his opinion about the ultimate issue in the case, i.e., whether Child
actually was abused. However, DHS has failed to show that the outcome of
the proceeding would have been different if Dr. Miller had been certified as a
child abuse pediatrician and was allowed to offer his opinion as an expert on
child abuse.
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“The trier of fact is not bound by the testimony of any expert witness
and is under no obligation to accept the conclusions of an expert witness.”
Murphey v. Hatala, 504 A.2d 917, 922 (Pa. Super. 1986), appeal denied,
533 A.2d 93 (Pa. 1987). However, “while a trial court is not required to accept
the conclusions of an expert witness … , it must consider them, and if the trial
court chooses not to follow the expert’s recommendations, its independent
decision must be supported by competent evidence of record.” Nelson v.
Kresge, 273 A.3d 1068, at *13 (Pa. Super. filed Feb. 23, 2022) (unpublished
memorandum) (citation omitted).2
The court thoroughly weighed Dr. Miller’s testimony and there is no
indication that had Dr. Miller expressly given an opinion on the ultimate issue
that it would have altered the court’s conclusion where the record reflects that
Dr. Miller’s opinion about the injuries was clear. Dr. Miller testified at length
as an expert in pediatrics about Child’s injuries, her lack of predisposition for
such fractures, and the tests that were run which showed her to be otherwise
healthy. (See N.T., at 24-47). He testified that Child’s diagnosis in March
2022 was “that her injuries were the result of trauma and represented a
significant degree of concern for nonaccidental trauma or inflicted injury.”
(Id. at 36). The court permitted the admission of Dr. Miller’s report, which
____________________________________________
2 Unpublished decisions of the Superior Court filed after May 1, 2019, may be
cited for their persuasive value. See Pa.R.A.P. 126(b).
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included his opinion that “the findings remain highly concerning for inflicted
trauma/child physical abuse.” (DHS Exhibit 6, Dr. Miller’s Report, at 24).
The court represents it “considered that evidence and assigned it the
weight that [it] deemed appropriate.” (Trial Ct. Op., 5/11/23, at 14). This
was within its discretion and there is no indication that the outcome of the
proceedings would have been any different had Dr. Miller’s opinion been
offered as a pediatrics child abuse physician rather than just a pediatrician.
Therefore, although we conclude that the trial court abused its discretion in
failing to qualify Dr. Miller as an expert child abuse pediatrician, DHS has failed
to establish prejudice. A new adjudicatory hearing is not warranted under
these circumstances. See Byerley, 284 A.3d at 1239.
III.
DHS next argues that the trial court erred in refusing to find child abuse
where, even without qualifying Dr. Miller as a child abuse expert, his testimony
“provided decisive proof that [Child]’s injuries were caused by [] abuse.”
(DHS’s Brief, at 23).3 Further, they maintain that the trial court’s reliance on
____________________________________________
3 Our standard of review of this matter is well-settled:
[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.
(Footnote Continued Next Page)
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the hypothetical possibility that Child’s injuries were caused by co-sleeping or
a rare bone fragility syndrome was not supported by the record.
Although “dependency proceedings are governed by the Juvenile Act,
42 Pa.C.S. §§ 6301–6375, the Child Protective Services Law (“CPSL”)[, 23
Pa.C.S. § 6301-6388,] controls determinations regarding findings of child
abuse, which the juvenile courts must find by clear and convincing evidence.”
Interest of T.G., 208 A.3d at 490 (citation omitted).4 The CPSL defines “child
abuse,” in pertinent part, as “intentionally, knowingly or recklessly … [c]ausing
bodily injury to a child through any recent act or failure to act.” 23 Pa.C.S.
§ 6303(b.1)(1). “Bodily injury” is an “impairment of physical condition or
substantial pain.” 23 Pa.C.S. § 6303(a). Under the Juvenile Act, a court may
____________________________________________
Interest of T.G., 208 A.3d 487, 490 (Pa. Super. 2019), appeal denied, 211
A.3d 750 (Pa. 2019) (citation omitted). “The trial court is free to believe all,
part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” Id. (citation
omitted). “A trial court’s decision constitutes an abuse of discretion only if it
is manifestly unreasonable or is the product of partiality prejudice, bias, or ill-
will. In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). An abuse of
discretion will not result merely because the reviewing court might have
reached a different decision because “we are not in a position to make the
close calls based on fact-specific determinations.” In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010).
4 “Whether one suffered such pain or impairment is a determination within the
purview of the trial court, which sits as the finder of fact[,]” and “[t]his Court
is not in a position to re-weigh evidence.” Burns v. Burns, 276 A.3d 222, at
*5 (Pa. Super. filed Mar. 8, 2022) (unpublished memorandum) (citations
omitted). However, this Court need not defer to determinations that are not
supported by the record or are manifestly unreasonable. See In re K.H.B.,
107 A.3d 175, 183 (Pa. Super. 2014).
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adjudicate a child dependent based on a child abuse finding. See 42 Pa.C.S.
§ 6302.
DHS has the burden of establishing child abuse by clear and convincing
evidence. See In re L.Z., 111 A.3d. 1164, 1176 (Pa. 2015); 42 Pa.C.S.
§ 6341(a), (c). Clear and convincing evidence is “evidence that is so clear,
direct, weighty, and convincing as to enable the trier of fact to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.”
Interest of A.C., 237 A.3d 553, 558 (Pa. Super. 2020) (citation omitted). “It
is not necessary that the evidence be uncontradicted provided it carries a clear
conviction to the mind or carries a clear conviction of its truth.” In Interest
of J.M., 166 A.3d 408, 423 (Pa. Super. 2017).
A.
In this case, DHS maintains that the trial court abused its discretion
when it found that DHS did not establish child abuse by clear and convincing
evidence, thus entitling it to the Section 6381(d) presumption and triggering
Parents’ burden to rebut it.
Pursuant to Section 6381(d) of the CPSL:
Evidence that a child has suffered child abuse of such a nature as
would ordinarily not be sustained or exist except by reason of the
acts or omissions of the parent or other person responsible for the
welfare of the child shall be prima facie evidence of child abuse by
the parent or other person responsible for the welfare of the child.
23 Pa.C.S. § 6381(d). That provision triggers a rebuttable presumption that
Parents perpetrated the abuse. In interpreting Section 6381(d), our Supreme
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Court has stated that “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.” In re L.Z., 111 A.3d at 1178 (citation
omitted).
The parent or responsible caregiver rebuts this prima facie presumption
by:
[d]emonstrating that the parent or responsible person 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 ... [DHS] ...
and the rebuttal of the parent or responsible person.
Interest of G.R., 282 A.3d 376, 382 (Pa. Super. 2022) (citations omitted);
see also In re S.L., 202 A.3d 723, 728 (Pa. Super. 2019) (Section 6381(d)
presumption “can be rebutted, like other statutory presumptions, with
countervailing competent, substantial evidence.”) (citations omitted).
The trial court found that DHS had not established the “bodily injury”
necessary for a finding of child abuse because it did not prove that Child’s
injuries caused substantial pain where Dr. Miller’s testimony about pain was
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“equivocal.” (See Trial Ct. Op., at 15); see also 23 Pa.C.S. § 6303(a).5 We
disagree.
The New York Court of Appeals has observed that although “‘substantial
pain’ cannot be defined precisely, [] it can be said that it is more than slight
or trivial pain. Pain need not, however, be severe or intense to be substantial.”
People v. Chiddick, 8 N.Y.3d 445, 447 (N.Y.Ct.Ap. 2007). This observation
is consistent with criminal cases in this Commonwealth where “bodily injury”
under the Crimes Code is defined the same as under the CPSL, i.e., as the
“[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.
In that context, this Court has observed that “injuries that are trivial in
nature” do not satisfy the statutory definition of bodily injury.
Commonwealth v. Wroten, 257 A.3d 734, 744 (Pa. Super. 2021) (citation
omitted). “[T]he existence of substantial pain may be inferred from the
circumstances surrounding the use of physical force even in the absence of a
significant injury.” Id. (citation omitted). In fact, Pennsylvania Courts have
found “substantial pain” for “bodily injury” purposes where the injuries are far
less severe than those at issue here. See, e.g., Commonwealth v. Marti,
____________________________________________
5 We agree with the court that DHS did not prove that Child suffered any
“impairment” from the fractures. Dr. Miller was unable to give an opinion on
possible impairment of Child’s range of motion. (See N.T., at 36, 42). He
also testified that Child was developmentally “on track,” he did not observe
any behavior that was abnormal for her age and the fractures did not require
any treatment. (N.T., at 28); (see id. at 28, 33, 39-40, 48).
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779 A.2d 1177, 1181-82 (Pa. Super. 2001) (deliberate punch with a closed
fist resulting in “slight swelling and pain” met statutory definition of bodily
injury); In re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000) (individual who
aggressively grabbed arm of another and pushed her against wall caused
substantial pain for bodily injury, even though victim did not require medical
attention and only sustained bruises that lasted a few days.); Commonwealth
v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994) (punch to the face
that broke the victim’s glasses and caused pain for several days caused bodily
injury as defined by Crimes Code).
Instantly, it is undisputed that seven-month-old Child had fractures to
her two arms and one rib, more significant injuries than those detailed above
that satisfied the substantial pain required for a “bodily injury”. See
Boggavarapu v. Ponist, 542 A.2d 516, 518 (Pa. 1988) (“We have held and
hold now that there are injuries to which human experience teaches there is
accompanying pain. Those injuries are obvious in the most ordinary sense:
the broken bone … and all the consequences of any injury traceable by medical
science and common experience as sources of pain and suffering.”). Rather
than being equivocal, Dr. Miller testified that although Child was not in pain
by the time he examined her because the injuries were healing, he would
expect fracturing a bone to be painful to a child. (See id. at 34). Although
Dr. Miller did not use the precise words “substantial pain,” common experience
informs us that three broken bones cause more than slight or trivial pain and
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suffering and, instead, substantial pain can be inferred from the force used to
cause them.
Hence, we find that the trial court abused its discretion when it
unreasonably concluded that DHS did not provide clear and convincing
evidence that Child experienced the substantial pain necessary for a finding
of bodily injury. See In re Adoption of S.P., 47 A.3d at 826.
However, this does not end our inquiry because the trial court found
that DHS failed to establish the fractures were child abuse pursuant to 23
Pa.C.S. § 6303(b.1)(1) where it did not prove that Parents caused the injury
since there were other possible explanations, i.e., bone fragility syndromes
and co-sleeping.
We first address the rare bone fragility syndromes explanation.
B.
Dr. Miller testified that Child underwent metabolic and genetic testing6
to assess her for issues that could predispose her to fractures and the testing
did not reveal any abnormal results. (See N.T., at 29-30). Furthermore, the
bones appeared healthy on the x-rays. (See id. at 30). Because of these
____________________________________________
6 This included “testing to assess bone health including some electrolytes that
are in the blood, things like calcium, magnesium and phosphorus that are part
of what constitutes the mineral of the bone as well as a Vitamin D level.”
(N.T., at 30). “The results of those tests did not indicate anything abnormal
that we would expect to predispose to fractures.” (Id.) Genetic “screening
for Osteogenesis Imperfecta or OI, … a predisposition to fractures, … was
negative as well[.]” (Id.).
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results, Dr. Miller concluded that Child’s fractures were likely a result of
trauma, and because of the absence of accidental trauma history, they were
concerning for nonaccidental trauma. (See N.T., at 30-32).
However, significant to the court was Dr. Miller’s testimony that
although testing for OI would identify a “significant majority of genetic
variants that could be responsible for OI” and CHOP relies on it, “it is not
absolutely 100 percent reliable.” (N.T., at 38, 40); (see Trial Ct. Op., at 15).
The other possible medical causes identified during Dr. Miller’s cross-
examination included Rickets, Cole Carpenter Syndrome, Bruck Syndrome,
familial osteoporosis, and McCune-Albright Syndrome. (See N.T., at 41-42).
Dr. Miller testified that Rickets, familial osteoporosis and McCune-Albright
Syndrome were not clinically indicated. (See N.T., at 41-42). He testified
that he could not speak to Cole Carpenter Syndrome in detail or how it relates
to this case and he was not certain off-hand what the medical evaluation for
that would be. (Id.). Testing for Bruck Syndrome was not conducted and Dr.
Miller testified that “[t]here were no abnormalities on physical exam that
would suggest that it would be appropriate to test for McCune-Albright.”
(N.T., at 42).
The trial court did not accept that the Child was abused because her
fractures could have been the product of some speculative rare bone fragility
syndromes that Dr. Miller had not found. That was an abuse of discretion
because the finding ignores that it was Parents’ burden to establish the
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alternate cause of injury once DHS made out the prima facie case, as well as
the fact of it being based on pure speculation. Parents did not provide any
evidence that the above rare conditions were relevant to Child’s case. They
did not identify any family history, physical symptoms or medical tests
suggesting that Child might have any of these syndromes. The fact is, since
being removed from Parents’ care, Child had not suffered any further
fractures. While it is not the province of this Court to re-weigh the evidence,
we conclude that the trial court’s finding that Child did not suffer child abuse
because her fractures could have been caused by these rare bone fragility
syndromes that are not supported in any way in the record was an abuse of
discretion. See Interest of T.G., 208 A.3d at 490; In re Adoption of S.P.,
47 A.3d at 826 (Pa. Super. 2019).7
We next turn to the court’s finding that co-sleeping possibly explained
Child’s fractures.
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7 In T.G., this Court reversed a trial court’s order declining to find child abuse.
T.G., who had advanced special needs, was diagnosed with malnutrition and
joint contractures that her doctor testified were caused by medical neglect.
The trial court discredited the treating physician’s testimony and instead
concluded that the child’s preexisting medical conditions might have caused
or contributed to the child’s symptoms. See id. at 492. In reversing, this
Court observed that “the certified record is bereft of any evidence that would
sustain the court’s conclusion that eight-year-old T.G.’s current diagnosis of
failure to thrive is the result of preexisting conditions.” Interest of T.G., 208
A.3d at 496.
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C.
At trial, DHS asked Ms. Priest whether Father had an explanation for the
injuries and she responded he did not, but he mentioned he had been co-
sleeping with Child during naps when he was watching her, “but that was the
only explanation he had.” (See N.T., at 13).8 In its opinion, the trial court
suggested that Child’s fractures could have been caused by Father co-sleeping
with her during naps because Dr. Miller did not rule this out. (See Trial Ct.
Op., at 15).
However, our review of the record does not support the court’s
characterization of the testimony. During Dr. Miller’s cross-examination, the
following interaction occurred:
Q. If an adult was co-sleeping with a child and both were asleep,
could a child of [Child]’s age sustain broken ribs if the adult had
slept on top of her?
A. That’s not something that I’ve ever heard of a case report being
described.
Q. How about—
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8 DHS argues that there is no evidence that Father co-slept with Child other
than the testimony of its witness, Ms. Priest, who testified about Father’s
disclosures to DHS during the investigation. (See DHS’s Brief, at 28-29).
DHS also cites Pa.R.E. 801 & 802 in support of its argument that Father’s
statements regarding co-sleeping are hearsay that is not admissible for the
truth of the matter asserted. (See id. at 29). However, our review of the
record confirms that no party objected to the admission of this testimony as
hearsay so any hearsay objection is waived. Moreover, it was DHS that
elicited this testimony and chose not to question Ms. Priest further about the
reliability of the statement.
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THE COURT: Sir, you didn’t answer the question. She asked
if it could happen. You said, I’ve never heard a report about
it. That’s not—could it happen?
THE WITNESS: I can’t say that it is without a shadow of any
possible doubt, but it’s something that I’ve never heard of.
THE COURT: So you couldn’t rule it out?
THE WITNESS: To the extent that I can’t rule out anything
with absolute certainty.
THE COURT: Okay.
(N.T., at 43). Thereafter, he again stated, “We know what risks are associated
with co-sleeping and fractures are not among them.” (N.T., at 44).
“While the trial court was not required to accept [a doctor]’s medical
opinion, the trial court’s countervailing conclusions must be supported
independently by the record.” Interest of T.G., 208 A.3d at 496. Instantly,
Parents did not offer any evidence to support the theory that co-sleeping could
have resulted in Child’s “highly abnormal pattern” of bi-lateral elbow fractures
and a fractured rib and Dr. Miller’s testimony made no admissions that
supports the court’s conclusion. (Id. at 32-33). Based on our independent
review, we conclude that the trial court’ s conclusion that co-sleeping possibly
caused Child’s injuries is not supported by the record.
For all of the foregoing reasons, the trial court’s conclusion that DHS
failed to provide clear and convincing evidence to establish child abuse was
unreasonable and an abuse of discretion. See Interest of T.G., 208 A.3d at
490, 496; In re Adoption of S.P., 47 A.3d at 826.
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D.
Because DHS established child abuse by clear and convincing evidence,
it triggered the rebuttable presumption that Parents perpetrated the abuse.
See Pa.C.S. § 6381(d).9 Therefore, Parents had the burden of rebutting this
presumption by producing “countervailing, competent, substantial evidence”
that they did not inflict the abuse, potentially with evidence that another
individual was responsible for it. In re S.L., 202 A.3d at 728; see also
Interest of G.R., 282 A.3d at 382. Any parent who does not testify or present
evidence cannot rely on prior statements to caseworkers and treating
physicians to rebut the Section 6381 presumption. See Interest of G.R.,
282 A.3d at 385.
Parents declined to testify or offer any evidence. Therefore, they failed
to rebut the presumption that they were the perpetrators of the child abuse.
See In re S.L., 202 A.3d at 728; Interest of G.R., 282 A.3d at 382, 385.
In sum, we conclude that the trial court abused its discretion when it
found that DHS did not establish child abuse by clear and convincing evidence
and that Parents had no duty to rebut the presumption that they were the
perpetrators. See Interest of T.G., 208 A.3d at 490.
____________________________________________
9 The purpose of Section 6381(d)’s presumption is “‘to avoid the evidentiary
conundrum where the existence of abuse is rather easily proven but the court
is unable ‘to assign responsibility for the heinous act among the responsible
adults[,]’ and to protect children from future abuse.” Interest of A.C., 237
A.3d 553, 559 (Pa. Super. 2020) (citing In re L.Z., 111 A.3d at 1185).
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IV.
Next, DHS argues that since it established child abuse, the trial court
abused its discretion in failing to adjudicate Child dependent.
A “dependent child” is defined, in relevant part, as one who is
“without proper parental care or control, subsistence, education
as required by law or other care or control necessary for his
physical, mental or emotional health, or morals. A determination
that there is a lack of proper parental care or control may be based
upon evidence of conduct by the parent, guardian, or other
custodian that places the health, safety or welfare of the child at
risk.” 42 Pa.C.S. § 6302. “The question of whether a child is
lacking proper parental care or control so as to be a dependent
child encompasses two discrete questions: whether the child
presently is without proper parental care and control, and if so,
whether such care and control are immediately available.
Interest of A.C., 237 A.3d at 563 (citation, footnote and brackets omitted).
“‘Proper parental control’ is defined as that care which (1) is geared to the
particularized needs of the child and (2) at a minimum, is likely to prevent
serious injury to the child.” Id. at 563 n.10 (citation and some internal
quotation marks omitted).
The trial court acknowledges that a finding of child abuse by a parent or
caregiver is sufficient to establish dependency and primarily based its
dependency decision on its ruling declining to find abuse. (See Trial Ct. Op.,
at 18); see also Interest of A.C., 237 A.3d at 564 (court properly found
child dependent where DHS presented sufficient evidence to prove child abuse
and mother failed to explain the injuries). Alternatively, it found that even if
Parents committed child abuse, dependency is inappropriate because “DHS
failed to present evidence that Child presently lacks proper parental care and
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control and that such care is not immediately available.” (Trial Ct. Op., at 18)
(emphasis in original).
However, as observed by DHS, “Pennsylvania law makes clear that a
finding of dependency can be made on the basis of prognostic evidence and
such evidence is sufficient to meet the strict burden of proof necessary to
declare a child dependent.” In re E.B., 83 A.3d 426, 433 (Pa. Super. 2013)
(citation omitted); see also Matter of DeSavage, 360 A.2d 237, 241-42 (Pa.
Super. 2013) (rejecting argument that child cannot be adjudicated dependent
unless he is in custody of parents who are presently shown to be unable to
render proper care and control because it “ignores the possibility that if the
‘experiment’ [of returning child to parent’s care] proves unsuccessful, the
consequences to the child could be seriously detrimental or even fatal.”).
As noted by DHS, dependency is “best suited to the safety, protection
and physical, mental, and moral welfare of Child” because it will allow DHS
the opportunity to supervise the process of reunifying the family and ensure
Child is safe once back in Parents’ care. 42 Pa.C.S. § 6351(a). We agree.
Seven-month-old Child suffered three broken bones while in her
Parents’ care and has not experienced any such injuries while residing with
her paternal aunt pursuant to the current DHS plan. Although, since then,
Parents have cooperated with DHS and completed a parenting class, this does
not alter the fact that they are the presumed perpetrators of the child abuse
and there is no evidence to suggest that they have done anything to remedy
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the issues that led to this abuse. Under these circumstances where DHS has
proven child abuse by clear and convincing evidence, we agree that it would
be in Child’s best interest to be adjudicated dependent so that DHS can
continue to work with them for family reunification.
Therefore, for all the foregoing reasons, we reverse the court’s order
dismissing the dependency petition and its finding that Parents did not commit
child abuse against Child.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Stabile joins the Opinion.
Judge Bowes files a Concurring Statement.
Date: 11/13/2023
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