Opinion
J-A22040-16 No. 215 MDA 2016
09-13-2016
IN THE INTEREST OF: B.L., A MINOR APPEAL OF: J.L., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Dispositional Order December 31, 2015
In the Court of Common Pleas of Lancaster County
Juvenile Division at No(s): CP-36-DP-0000197-2015 BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, J.L. ("Father"), challenges the order entered in the Lancaster County Court of Common Pleas, which adjudicated B.L. ("Child") a dependent child and placed him in the custody of the Lancaster County Child and Youth Social Service Agency ("Agency"). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Father raises the following issues:
DID THE COURT ERR IN FINDING THAT [CHILD] IS A VICTIM OF CHILD ABUSE AND THAT FATHER IS A PERPETRATOR OF ABUSE, AS FATHER DID NOT CAUSE THE INJURY TO [CHILD OR] KNOW THE CAUSE OF THE INJURY TO [CHILD], AND THERE IS NO EVIDENCE THAT FATHER ACTED INTENTIONALLY, KNOWINGLY OR RECKLESSLY CONCERNING HIS CHILD OR PLACING HIS CHILD AT RISK?
DID THE COURT ERR IN FINDING THAT [CHILD] IS A DEPENDENT CHILD, AS [CHILD], BOTH PARENTS, AND THE SIBLING OF [CHILD] WERE A FAMILY UNIT THAT WANTED FOR NOTHING AND POSED NO RISK TO THE HEALTH, SAFETY AND WELFARE OF [CHILD]?(Father's Brief at 8-9).
SHOULD THE COURT PROPERLY HAVE GIVEN CREDIBILITY TO THE TESTIMONY OF THE PARENTS AS OPPOSED TO THE TESTIMONY OF THE NURSE PRACTITIONER THAT TREATED [CHILD], AS THE TESTIMONY OF THE PARENTS WAS CONSISTENT, BUT DURING HER TESTIMONY THE NURSE PRACTITIONER OFFERED TWO DIFFERENT DESCRIPTIONS OF THE SPECIFIC TREATMENT THAT SHE ATTEMPTED TO ADMINISTER TO [CHILD]?
SHOULD THE COURT PROPERLY HAVE DISREGARDED THE TESTIMONY OF THE EXPERT WITNESS OFFERED BY THE AGENCY, AS THE OPINION OF THE EXPERT WITNESS WAS SPECULATIVE AND BASED UPON HOSPITAL RECORDS OF DUBIOUS ACCURACY GIVEN THE INCONSISTENT TESTIMONY PRESENTED BY THE NURSE PRACTITIONER THAT TREATED [CHILD] AT THE HOSPITAL?
The applicable scope and standard of review for dependency cases is as follows:
[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (quoting In re R.J.T., 608 Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)).
We accord great weight to this function of the hearing judge because [the court] is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before [the court]. Relying upon [the court's]
unique posture, we will not overrule [its] findings if they are supported by competent evidence.In re A.H., 763 A.2d 873, 875 (Pa.Super. 2000) (quoting In re B.B., 745 A.2d 620, 622 (Pa.Super. 1999)) (citations omitted). See also In re L.Z., ___ Pa. ___, ___, 111 A.3d 1164, 1174 (2015) (reiterating standard of review in dependency cases requires appellate court to accept trial court's findings of fact and credibility determinations if record supports them, but appellate court is not required to accept trial court's inferences or conclusions of law); In re D.P., 972 A.2d 1221, 1225 (Pa.Super. 2009), appeal denied, 601 Pa. 702, 973 A.2d 1007 (2009) (stating applicable standard of review in dependency cases is "abuse of discretion"). Further, in placement and custody cases involving dependent children:
The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witnesses and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by competent evidence of record, we will affirm even if the record could also support an opposite result.In re S.G., 922 A.2d 943, 947 (Pa.Super. 2007).
The Child Protective Services Law defines "child abuse," in relevant part, as follows:
§ 6303. Definitions
(b.1) Child abuse.--The term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:
23 Pa.C.S.A. § 6303(b.1)(1).(1) Causing bodily injury to a child through any recent act or failure to act.
* * *
The existence of "child abuse" pursuant to Section 6303(b.1) must be proven by clear and convincing evidence. In re L.Z., supra. Under certain circumstances, however, the identity of an abuser may be established by prima facie evidence. Id. See also In re L.V., 127 A.3d 831, 837-38 (Pa.Super. 2015).
[E]vidence that a child suffered injury that would not ordinarily be sustained but for the acts or omissions of the parent or responsible person is sufficient to establish that the parent or responsible person perpetrated that abuse unless the parent or responsible person rebuts the presumption. The parent or responsible person may present evidence demonstrating that they did not inflict the abuse, potentially by testifying that they gave responsibility for the child to another person about whom they had no reason to fear or perhaps that the injuries were accidental rather than abusive. The evaluation of the validity of the presumption would then rest with the trial court evaluating the credibility of the prima facie evidence presented by the CYS agency and the rebuttal of the parent or responsible person.In re L.Z., supra at ___, 111 A.3d at 1185 (internal footnote omitted).
Significantly, courts do not require a parent's physical presence during the injury for "abuse" to occur. Id. at ___, 111 A.3d at 1184. To the contrary, our Supreme Court has stated, "parents are always responsible for their children, absent extenuating circumstances...." Id. Moreover, "[t]he inclusion of 'omissions' encompasses situations where the parent or responsible person is not present at the time of the injury but is nonetheless responsible due to his...failure to provide protection for the child." Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jay J. Hoberg, we conclude Father's issues merit no relief. The trial court's opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed April 4, 2016, at 1-11) (finding: (1) at time of injury, Child was six months old; on day of injury, Child was not moving his injured arm, necessitating visit to emergency room; nurse practitioner who treated Child during emergency room visit initially believed injury was "nursemaid's elbow" and performed reduction procedure; after reduction, Child was still unable to use arm and cried in pain when arm was moved; X-rays revealed Child had suffered spiral fracture of humerus, which is commonly caused by twisting; Dr. Kathryn Crowell, expert in pediatrics with specialty in child abuse, who evaluated Child, established Child's injury caused Child significant, ongoing pain; spiral fracture caused Child substantial pain and impaired Child's physical functioning; Father initially stated Child was fine before napping in Child's swing on day of injury; Child's parents later stated injury could have been caused by Child "dancing" with his four-year-old half-sister; Child's parents also stated nurse practitioner's initial treatment caused Child's injury; clear and convincing evidence demonstrated Child's injury was result of child abuse; Dr. Crowell established that Child's parents' explanations for injury were implausible and would not have resulted in type of injury Child sustained; Dr. Crowell explained it was extremely unlikely that four-year-old half-sister could have caused Child's injury; Child's injury was present before treatment; Child's parents' explanations for injury were inconsistent, evasive, and lacked credibility; testimony of nurse practitioner and Dr. Crowell was credible and persuasive; Child's injury satisfied definition of "child abuse"; Child's parents were Child's only caregivers in days leading up to Child's injury; prima facie evidence demonstrated Child's parents were perpetrators of child abuse; Child's parents' explanations for Child's injury were inconsistent with medical evidence; Child's parents' rebuttal did not outweigh totality of credible evidence and medical records; (2) clear and convincing evidence showed Child was abused and without proper parental care; Child's injury would not have occurred but for Child's parents' acts or omissions; Child, therefore, is dependent child; (3) exhibits on record, together with medical testimony, provided accurate timeline of events; testimony of nurse practitioner was credible and persuasive; nurse practitioner routinely and successfully performed treatment she performed on Child; Child's parents' testimony was evasive and lacked credibility; Child's parents did not provide consistent explanation for Child's injuries that fit with medical evidence; Child's parents were unable to answer specific questions on when injury occurred; (4) Dr. Crowell conducted separate exam of Child, met with Child's parents, ordered new X-rays, and reviewed records of Child's emergency room visit; nurse practitioner's testimony and emergency room records were credible; Dr. Crowell's testimony established when she met with Child's parents, they did not allege Child's half-sister caused injury, but stated they believed nurse practitioner caused injury; Dr. Crowell testified nurse practitioner's treatment would not have caused Child's injury; totality of substantial medical evidence concerning Child's injuries was compelling and outweighed Child's parents' inconsistent and inconclusive testimony). The record supports the court's dependency decision. Accordingly, we affirm on the basis of the trial court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/13/2016
Image materials not available for display.