In the Int. of: H.M., Appeal of: D.M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.M. :
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: No. 1348 EDA 2021
Appeal from the Order Entered June 9, 2021
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0001809-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 24, 2022
D.M. appeals from the June 9, 2021 order finding her to be a perpetrator
of child abuse against H.M. (“Child”), pursuant to 23 Pa.C.S.A. § 6303(b.1)(1),
(5), and (7). Here, medical testimony established that Child, who was two-
years old at the relevant time, suffered injuries that were the result of non-
accidental trauma that occurred while D.M., D.M.'s sibling, and Child’s mother
(“Mother”) were responsible for Child. Moreover, no explanation was provided
for how the injuries occurred. Under these facts, the court 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. Because D.M. failed to rebut that presumption, we
are constrained to affirm the order.
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During the relevant time, Mother lived with D.M. and D.M.’s sibling.
Mother traded babysitting duties with D.M. and D.M.’s sibling as she could not
afford childcare.
On October 31, 2019, Mother was at work and had left Child in D.M.’s
care. D.M.’s sibling was also home at the time. Mother received a call notifying
her that Child had fallen down fourteen or fifteen steps, but nobody had
witnessed the fall. Mother then observed Child on a video call and noticed he
was going in and out of consciousness. Mother told D.M. and D.M.’s sibling to
take Child to the ER. However, when Mother returned home an hour or two
later, Child was still there, so she contacted emergency medical services, and
Child was transported to the hospital for treatment.
That same day, the Philadelphia Department of Human Services (“DHS”)
received a Child Protective Services (“CPS”) report regarding Child. The report
stated that Child had been taken to the hospital and had sustained multiple
injuries, including a bruise on his mid-forehead, abrasions on his nose,
lacerations on his lips, a small lateral conjunctival hemorrhage on his left eye,
and small lesions on his arms, wrists, and hands. Child was also noted to have
older, healing lesions that looked like bite marks on the left side of his chest
and multiple well-healed lesions on the left side of his upper chest. The
hospital also performed blood work on Child, which indicated abdominal
trauma. A skeletal survey showed a left clavicle fracture and a healing right
radius fracture.
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The following day, on November 1, 2019, DHS interviewed Mother and
the hospital staff, and visited with Child. The hospital confirmed the allegations
in the report and that Child's condition was certified as a near fatality by the
treating physician. When DHS asked Mother about the other injuries Child was
noted to have sustained in the past, Mother could not provide a reasonable
explanation for the injuries.
On November 4, 2019, DHS received additional information. The
updates included that Child received two abdomen and pelvis computed
tomography ("CT") scans; that the first scan revealed possible liver laceration
and pancreatic laceration; that the second scan showed spleen laceration; that
Child had an old left clavicle fracture, an old left scapula fracture, and an old
right radius fracture; that there was no reasonable explanation for the old
fractures and nothing in the computer records regarding the old fractures; and
that it was unknown how Mother responded to being told Child had old
fractures. The report was also updated to note that Child's prognosis was good
and he was doing well, eating, and his pain was controlled.
On November 25, 2019, DHS determined the CPS report was indicated.1
Mother, D.M., and D.M.’s sibling were identified as perpetrators of child abuse.
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1 A report of child abuse is referred to as indicated if an agency determines
that substantial evidence of the alleged abuse exists. See 23 Pa.C.S.A. §
6303.
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On May 8, 2020, after an adjudicatory hearing, Child was adjudicated
dependent, and legal custody of Child was transferred to DHS. Notice was
given that the next court date would be for a contested permanency review
and child abuse hearing.
On June 9, 2021, the trial court held a contested permanency review
and child abuse hearing. Mother, Dr. Marita Lind, and a DHS Social Work
Supervisor all testified at the hearing. D.M. appeared via video while traveling
on an airplane. D.M. was in attendance for a portion of the hearing, but
disconnected mid-way through. D.M. did not provide any testimony at the
hearing. D.M.’s sibling also did not testify. At the end of the hearing, the court
found Mother, D.M., and D.M.’s sibling were perpetrators of child abuse.
Accordingly, the October 31, 2019 CPS report was upgraded to founded. 2 This
timely appeal followed.
On appeal, D.M. argues the trial court erred and abused its discretion
when it determined she was a perpetrator of child abuse against Child.
Our standard of review for dependency cases is as follows:
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court's inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
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2A report of child abuse is referred to as founded if a judicial adjudication has
determined that the alleged abuse occurred. See 23 Pa.C.S.A. § 6303.
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In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations 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.” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation
omitted).
This Court has previously stated the appropriate standard of proof
necessary for a finding of child abuse:
The requisite standard of proof for a finding of child abuse
pursuant to Section 6303(b.1) is clear and convincing evidence.
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) (citations and internal
quotation marks omitted).
In situations where it is clear a child has been abused but it is unclear
who the perpetrator of that abuse was, the identity of the perpetrator may be
presumed using prima facie evidence:
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) (emphasis added).
This presumption, however, may be rebutted. See Interest of S.L.,
202 A.3d 723, 728 (Pa. Super. 2019) (stating that once an agency presents
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prima facie evidence of abuse, a parent or caregiver presumed to have
perpetrated that abuse is entitled to rebut that presumption). Our Supreme
Court has explained:
the Legislature balanced the presumption of Section 6381(d) by
making it rebuttable as it merely establishes “prima facie
evidence” that the parent [or responsible person] perpetrated the
abuse. As commonly understood, 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. Accordingly, evidence that a child suffered
injury that would not ordinarily be sustained but for the acts or
omissions of the parent or responsible person is sufficient to
establish that the parent or responsible person perpetrated that
abuse unless the parent or responsible person rebuts the
presumption. The parent or responsible person may present
evidence demonstrating that they did not inflict the abuse,
potentially by testifying that they gave responsibility for the child
to another person about whom they had no reason to fear or
perhaps that the injuries were accidental rather than abusive. …
The evaluation of the validity of the presumption would then rest
with the trial court evaluating the credibility of the prima facie
evidence presented by the CYS agency and the rebuttal of the
parent or responsible person.
In re L.Z., 111 A.3d 1164, 1185 (Pa. 2015).
On appeal, D.M. argues the trial court improperly found that she was a
perpetrator of child abuse, pursuant to 23 Pa.C.S.A. § 6303(b.1), because
DHS failed to present clear and convincing evidence that D.M. intentionally,
knowingly, or recklessly caused bodily injury to Child through act or omission.
This claim fails.
In support of its allegations that Child had suffered child abuse, DHS
presented the uncontroverted testimony of Dr. Marita Lind, who testified as
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an expert witness in pediatrics and child abuse pediatrics.3 Dr. Lind testified
that Child presented to the hospital with abrasions and bruising on his face
and a laceration of his lip due to a fall down the stairs. See N.T., 6/9/2021,
at 18. Child also had pattern bruising marks on his anterior chest and linear
marks in his armpit area which raised a concern for non-accidental trauma.
See id. at 18, 34-36. Accordingly, a skeletal survey was performed, which
revealed multiple fractures of different ages. See id. at 18, 23-24, 34-36.
Laboratory studies indicated elevated liver and pancreatic enzymes, so an
abdominal scan was performed. See id. at 18, 37, 44-45. Child was found to
have acute traumatic pancreatitis. See id. at 18. Child was given a cast for
his right forearm and a sling for his left upper arm due to a clavicle and
scapular fracture.
Dr. Lind testified that Mother was questioned about the older markings
on Child, and Mother indicated she believed the markings occurred when child
was in the care of D.M. and D.M.’s sibling, and that another child in the house
may have bitten Child. See id. at 21. Mother had specifically told Dr. Lind that
Child had not had any prior trauma. See id. at 23.
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3 Both sides stipulated to the fact of Dr. Lind’s expertise and experience. See
N.T., 6/9/2021, at 10-11. Further, Dr. Lind testified that she had been called
in for a child abuse consult for Child, as part of her employment at the time
of director of the child protection team at the hospital. See id. at 14-17.
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Dr. Lind identified multiple fractures on Child that had occurred on more
than one occasion.4 Dr. Lind described Child’s left scapular fracture as “highly
concerning for physical abuse.” Id; see also id. at 27.
Dr. Lind testified that there is radiologic evidence that both of Child’s
arms, both of Child’s scapula, and his clavicle were fractured and that these
injuries would have been noticeable in a two-year old because a child of that
age is ambulatory and active in using their arms for moving, feeding
themselves, and playing. Dr. Lind further testified that these older injuries
would have caused Child substantial pain. See id. at 30, 33.
Dr. Lind testified that Child could have contributed to an accidental
injury, but that would not explain all of the injuries found on Child. See id. at
26 (“[A]bsent a significant history of trauma, which would involve maybe a
motor vehicle [] multiple times, it’s unlikely that there would be an accidental
explanation for these injuries at all”). Dr. Lind further testified that one fall
could not have caused all of the injuries observed on Child, because the
injuries occurred at different times, and many of the injuries observed are not
expected injuries caused by such a fall as the one here. See id. at 28-30.
Dr. Lind concluded, based on her medical training and experience, that
while some of Child’s injuries may have been accidental, the totality of his
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4Dr. Lind later testified she believed at least three incidents, but possibly
more, would have had to occur to cause the injuries observed. See id. at 49-
50.
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injuries were not. See id. at 39. Dr. Lind further concluded that the fall down
the stairs could explain some of the injuries, but the fall was not a plausible
explanation for the totality of the injuries. Dr. Lind stated Mother was aware
the fall could not have caused all of the injuries on Child. Dr. Lind stated any
caretaker should have been able to notice Child’s injuries, and corresponding
pain caused by those injuries, and she was concerned the injuries had not
been recognized and no treatment had been sought. See id. at 62.
Dr. Lind ultimately concluded the injuries were the result of child abuse.
See id. at 39-40, 62. The trial court found Dr. Lind’s testimony to be credible.
Based on this medical expert testimony, along with the other testimony
provided at the hearing, the trial court concluded Child suffered child abuse.
Notably, at no point on appeal does D.M. dispute that Child was a victim
of child abuse. D.M. fails to dispute Dr. Lind’s determination, or the trial court’s
conclusion, that Child suffered from child abuse on more than one occasion.
Dr. Lind provided substantial testimony that Child suffered from non-
accidental trauma, which caused Child substantial pain and impaired Child’s
functioning, leading her to determine Child was the victim of child abuse. The
trial court credited Dr. Lind’s expert testimony and concluded that Child had
suffered child abuse as defined by 23 Pa.C.S.A. § 6303. As this finding is not
challenged by D.M. on appeal we will not disturb it.
D.M.’s issue on appeal centers on the trial court’s finding that she was
among the adults responsible for Child when Child’s injuries occurred. She
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claims, contrary to what the trial court found, there was no clear and
convincing evidence that she perpetrated the abuse on Child. However, once
DHS met its burden of proving by clear and convincing evidence that Child
suffered from child abuse, DHS only had to prove, pursuant to the Section
6381(d) presumption, by prima facie evidence that Child could not have
sustained his injuries but for the acts or omissions of the persons responsible
for him at the time of his injuries. The trial court found D.M. to be a person
responsible for Child at the time of his injuries.
A majority of D.M.’s brief focuses on her claim that an act or omission
on her part could not have caused the injuries here because she contends she
was not home at the time of the injury. D.M. claims she was picking up her
own children from school at the time.
However, the application of the Section 6381(d) presumption is not
conditioned upon proof of a parent or responsible person’s physical presence
at the time of a child’s injury. See In re L.Z., 111 A.3d at 1184-85. Rather,
the presumption “encompasses situations where the parent or responsible
person is not present at the time of the injury but is nonetheless responsible
due to his or her failure to provide protection for the child.” Id. at 1184.
Mother left Child in D.M.’s care on the day that he was taken to the hospital
after sustaining multiple injuries.
Further, the evidence presented at the hearing was sufficient to
establish past abuse of Child. This, paired with Mother’s testimony that
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something always seemed to happen to Child when in D.M.’s care, see N.T.,
6/9/2021, at 43, 83, 97-98, was sufficient to allow the trial court to apply the
presumption to D.M. regarding the evidence of previous abuse.
As noted above, D.M. was entitled to rebut this presumption. However,
she did not present any evidence or testimony at the hearing in support of her
claim that she was not responsible for Child at the time of his injuries. For a
reason that is not apparent from the record, D.M. joined the hearing by video
call from an airplane, but soon after had to disconnect when the airplane was
about to take off. D.M. does not contend she was not given ample notice of
the hearing, explain why she was not available at the time to testify on her
own behalf, nor did she ask for any kind of continuance. Therefore, D.M. failed
to rebut the prima facie presumption that she was a perpetrator of child abuse.
As D.M. failed to rebut the Section 6381(d) presumption, the trial court
did not err in finding D.M. was a perpetrator of child abuse. We therefore
affirm the order finding D.M. was a perpetrator of child abuse.
Order affirmed. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Dubow did not participate in the consideration.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2022
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