In re Interest of H.Y.

233 A.3d 923

In the INTEREST OF: H.Y., a Minor

Appeal of: M.Y., Mother

In the Interest of: H.Y., a Minor

Appeal of: D.Y., Father

No. 1754 WDA 2019

No. 1755 WDA 2019

Superior Court of Pennsylvania.

Submitted March 31, 2020

Filed June 9, 2020

Daniel P. Buzard, Pittsburgh, for appellant.

Tiffany E. York, Beaver, for appellee.

Dana M. Kwidis, Beaver, for Beaver County CYS, participating party.

BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.^*

OPINION BY MURRAY, J.:

M.Y. (Mother) and D.Y. (Father) (collectively, Parents) appeal from the order of adjudication and disposition finding their son, H.Y. (Child), born in May 2019, to be the victim of child abuse and dependent. In addition, the order maintained Child's placement in kinship care with his paternal grandmother. Upon careful review, we affirm.

The juvenile court set forth sixty-six factual findings in the order, which the testimonial evidence supports. See Order of Adjudication and Disposition, 11/7/19, at 1-6.

On June 20, 2019, Parents took Child, then five-weeks-old, to his pediatrician, Megan Kilpatrick, M.D., for evaluation of bruises on his chin, left cheek, right palm, third finger, and right leg. Order, 11/7/19, at ¶¶ 7-8. Dr. Kilpatrick sent Child by ambulance to Children's Hospital of Pittsburgh (CHP), where he was diagnosed with "bruising in multiple aspects of the body."¹ Id. at ¶ 10; N.T., 9/30/19, at 58. In addition, CHP performed x-rays of all of Child's bones, namely, a "skeletal survey," which revealed "metaphyseal fractures of the right distal femur, right proximal tibia and the left proximal tibia. Metaphyseal fractures of the right and left distal tibia were also noted on the original skeletal survey of June 20, 2019.^{[2 ]} Suspected acute fractures of the right lateral 7, 8 and 9 ribs were noted on the June 20, 2019, skeletal survey. ..."³ Order, 11/7/19, at ¶ 12. In addition, the skeletal survey indicated that Child's right wrist, although bruised, was not fractured. N.T., 9/30/19, at 148-49. The CHP physicians who examined Child on June 20, 2019, assessed Child's injuries as "diagnostic for physical child abuse," and opined that the injuries "caused substantial pain at the time they were inflicted." CYS Exhibit 3.

On June 21, 2019, the juvenile court removed Child from Parents’ custody and placed him in the emergency protective custody of Beaver County Children and Youth Services (CYS). The emergency order placed Child in kinship care with his paternal grandmother. Following a shelter care hearing on June 24, 2019, the court continued Child's placement.

On June 25, 2019, CYS filed a dependency petition alleging that Child was without proper care and control pursuant to 42 Pa.C.S.A. § 6302, and that he was a victim of child abuse as defined by 23 Pa.C.S.A. § 6303. In July of 2019, CYS filed a motion for aggravated circumstances against Parents.

On July 23, 2019, prior to the hearing on CYS's petitions, Parents took Child to Thomas Kuivila, M.D., a pediatric orthopedic surgeon at the Cleveland Clinic, for a second opinion on whether Child's injuries were caused by non-accidental trauma. See Father's Exhibit B. Following new x-rays of Child, Dr. Kuivila noted his impression that Child's bone injuries were caused by "a subtle metabolic issue." Id. Dr. Kuivila evaluated Child in his follow-up appointment on August 13, 2019, when additional x-rays were performed. On that date, Dr. Kuivila referred Child to a pediatric endocrinologist for the purpose of obtaining a "screening DNA sequencing" to "further evaluate the bone quality." N.T., 9/30/19, at 227. Specifically, Dr. Kuivila recommended that Child have genetic testing for osteogenesis imperfecta.⁴ Id. at 228.

On September 30, 2019, the court held a hearing on CYS's requests for a finding of child abuse, an adjudication of dependency, and a finding of aggravated circumstances. On that date, Parents were awaiting a preliminary hearing on criminal charges filed on August 8, 2019 relating to Child's injuries, including aggravated assault, endangering the welfare of children, and simple assault. Parents were out of prison on bond and present for Child's adjudication hearing. Parents were represented by separate counsel.⁵

CYS presented the testimony of the following witnesses: Nicholas Aschley, police officer; Adelaide Eichman, M.D., and Sheila Moore, M.D., via telephone, medical experts in pediatric child abuse and pediatric radiology from CHP; Megan Kilpatrick, M.D., via telephone, Child's pediatrician from Children's Community Pediatrics (CCP); and Roxanne Cripe, CYS caseworker.

In addition, CYS introduced into evidence, and the court admitted, 11 exhibits, including the curriculum vitae of Dr. Eichman; a PowerPoint created, in part, by Dr. Eichman to aid her testimony; medical consult notes and addenda of Carmen Coombs, M.D., and Rachel Berger, M.D., physicians from the CHP Child Advocacy Center, which included color photographs of Child's bruises; Child's discharge summary; curriculum vitae of Dr. Moore; Dr. Moore's radiology reports; Dr. Kilpatrick's medical records from Child's one-month well visit on June 17, 2019; and the CYS family finding report.

Father presented the testimony of Dr. Kuivila, via telephone, medical expert in pediatric orthopedic surgery; Christopher Olbrich, Child's current primary care physician; and Rev. Tony Gargotta and Ryan Sweeney, character witnesses. In addition, Father introduced into evidence, and the court admitted, five exhibits, including Dr. Kuivila's curriculum vitae ; Dr. Kuivila's medical notes from Child's appointments on July 23rd and August 13, 2019; and radiology reports from those same dates. Finally, Mother presented the testimony of Casey Darnley, character witness.

After the hearing, the court determined that Child was a victim of abuse and adjudicated him dependent. In doing so, the court found that Child was exclusively in the care of Parents during the relevant time-period. Order, 11/7/19, at ¶¶ 27, 51. Based upon credibility determinations in favor of Dr. Eichman and Dr. Moore, the court stated:

The type of injuries are of such a nature as would normally not be sustained or exist except by reason of the acts or omissions of the parent. ... These injuries placed [Child] in substantial pain[,] and the explanation proffered by Parents is entirely inconsistent with the findings of the credible ... medical expert testimony presented by [CYS,] all of whom opined that the injuries were caused by child abuse.

Id. at ¶ 26. By separate order that day, the court denied CYS's motion for aggravated circumstances.

On November 25, 2019, Mother, acting pro se , filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The same day, Father, through counsel, filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated Mother's and Father's appeals sua sponte on December 18, 2019. On December 24, 2019, the juvenile court filed its opinion pursuant to Pa.R.A.P. 1925(a).

Parents present the following issue for review:⁶

Whether the [juvenile] court erred in finding the evidence was sufficient to establish that [Child] was a dependent child under ... 42 Pa.C.S. § 6302 and an abused child under ... 23 Pa.C.S. § 6303 ?

Parents’ Brief at 3.

Our standard of review in 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 R.J.T. , 608 Pa. 9, 9 A.3d 1179, 1190 (2010) (citation omitted).

This Court has explained:

Dependency proceedings concern themselves with the correction of situations in which children are lacking proper parental care or control. A dependent child is one who "is without proper parental care or control ... necessary for his physical, mental, or emotional health. ..." 42 Pa.C.S.A. § 6302. Whether a child is lacking proper parental care and control encompasses two discrete questions: (1) Is the child at this moment without proper parental care or control? and (2) If so, is such care and control immediately available? The burden of proof in a dependency proceeding is on the petitioner ... who must show [that] the juvenile is without proper parental care, and that such care is not available immediately. Both of these determinations must be supported by clear and convincing evidence. Such a conclusion requires that testimony be so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

A finding of abuse may support an adjudication of dependency. When the court's adjudication of dependency is premised upon physical abuse, its finding of abuse must be supported by clear and convincing evidence. However, its findings as to the identity of the abusers need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers (parents).

In re C.R.S. , 696 A.2d 840, 842-843 (Pa. Super. 1997) (citations omitted).

We have stated that the Child Protective Services Law (CPSL) "controls determinations regarding findings of child abuse, which the juvenile courts must find by clear and convincing evidence." In re L.V. , 209 A.3d 399, 417 (Pa. Super. 2019) (citations omitted). "Clear and convincing evidence" requires:

that the witnesses must be found to be credible; that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order; and that their testimony is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without

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