In re Interest of C.B.

264 A.3d 761

In the INTEREST OF: C.B., a Minor

Appeal of: A.B., Father

In the Interest of: K.B., a Minor

Appeal of: A.B., Father

In the Interest of: A.B., a Minor

Appeal of: A.B., Father

In the Interest of: C.B., a Minor

Appeal of: S.B., Mother

In the Interest of: K.B., a Minor

Appeal of: S.B., Mother

In the Interest of: A.B., a Minor

Appeal of: S.B., Mother

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

Appeal of: S.B., Mother

No. 121 EDA 2020

No. 127 EDA 2020

No. 129 EDA 2020

No. 124 EDA 2020

No. 125 EDA 2020

No. 128 EDA 2020

No. 130 EDA 2020

Superior Court of Pennsylvania.

Filed: September 23, 2021

Michael Eugene Angelotti, Richard J. Giuliani, Philadelphia, PA, for Appellant A.B.

Roberto Miguel Valdes-Baes, Robert D. Aversa, Kathleen Bola Kim, City of Philadelphia Law Department, Philadelphia, PA, for Appellee Department of Human Services

Debra Anne Moshinski, Moshinski Law PC, Huntington Valley, PA, for Participant S.B.

Beth E. Kahn, Ilana Friedman Ehrlich, Defender Association of Philadelphia, Philadelphia, PA, for C.B., a Minor and Guardian Ad Litem

BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY LAZARUS, J.:

A.B. (Father) appeals from the trial court's orders adjudicating his three minor children, C.B. (born 1/16), and twins, K.B. and A.B. (born 5/19), dependent. S.B. (Mother) also appeals from the same orders adjudicating those minor children dependent, as well as an order adjudicating her other child, Y.C.¹ (born 9/10), dependent.² The court also entered an order finding that K.B. suffered child abuse. Here, medical testimony established that five-month-old K.B. suffered injuries that were the result of non-accidental trauma that occurred while Father and Mother (collectively, Parents) were responsible for K.B.’s welfare. Moreover, neither Father nor Mother could provide an explanation of 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 Mother and Father failed to rebut that presumption, we are constrained to affirm the orders.³

Mother and Father are the biological parents of C.B., K.B. and A.B. Mother also has a child, Y.C., whose biological father passed away. Father and Y.C. have a close, father-son type relationship. Since Parents both work outside the home, they hired two babysitters (Babysitter #1 & Babysitter #2)⁴ to take care of Children when they are at work. Y.C.’s paternal grandmother (Paternal Grandmother)⁵ also helps care for Children.

K.B. and A.B. attended the Goddard School in October 2019. On the evening of October 11, 2019, Parents had dinner at the Palm Restaurant in Philadelphia, while K.B. and A.B. were cared for by Babysitter #1. When Parents returned home from dinner at approximately 11:30 p.m., Children were asleep. The next morning, a Saturday, Parents left the house early to go shopping for winter coats in Delaware for Children; Children stayed with Babysitter #1 and Babysitter #2 while they were gone. Parents returned home from shopping around 5:30 p.m., at which time Babysitter #1 went to her home for a brief period. She returned to Parents’ home around 8:00 p.m., resumed her babysitting duties, and stayed the night.⁶ The following day, Sunday, October 13, Parents went to New York for the day. Y.C. and C.B. went to a pumpkin patch with Babysitter #2, while Babysitter #1 watched the twins at home. Mother testified that she received a picture of the twins in their car seats from Babysitter #1 at 4:30 p.m. on October 13, 2019, and that there did not appear to be anything wrong with K.B. at that time. Neither babysitter noticed anything amiss with Children that day, except that K.B. fell asleep on his right side, which was unusual as he always slept on his back. Babysitter #2 testified that, when K.B. woke up that evening before Parents returned home from New York, his cry was not normal and sounded like "a grunt cry, almost as if he w[ere] hurt." N.T. Dependency/Abuse Hearing, 12/16/19, at 146-48. Paternal Grandmother,⁷ Babysitter #1, and Babysitter #2 were at the house when Parents returned home from New York around 10:10 p.m. Babysitter #1 left to go home about 10 minutes later. Although K.B. was fussy that evening, it did not concern Mother or Father, since he was the more difficult of the twins.

Father testified at the abuse hearing that early on the morning⁸ of October 14, 2019, K.B. let out a loud "scream" that woke up Parents.⁹ Id. at 72. Father found K.B. in distress; Mother noticed that when K.B.’s right hand was touched, he would scream. Paternal Grandmother noticed that K.B. had swelling on his right arm and hand on the morning of the 14^th as well. That morning, around 8:00 a.m., Parents took K.B. to Virtua Hospital (Virtua) in Voorhees, New Jersey, to be evaluated. Virtua is approximately a one-hour drive from Parents’ home. A series of radiographs known as a "skeletal survey" showed that K.B. had a broken bone in his upper right arm and a right shoulder fracture ; because there were no signs of healing, an examining doctor determined that the injuries had been sustained no earlier than seven to ten days prior to the imaging. Mother and Father indicated that they had no idea how K.B sustained these injuries. In the twenty-four hours preceding the discovery of the injuries, K.B. had been in the care of three individuals in addition to Mother and Father: Paternal Grandmother, Babysitter #1, and Babysitter #2.

K.B. was transferred from Virtua to the emergency department of the Children's Hospital of Philadelphia (CHOP). At CHOP, Dr. Brian William Brennan, M.D., a child abuse expert and maltreatment fellow, evaluated K.B. for suspected child abuse. Doctor Brennan also interviewed Mother at CHOP regarding K.B.’s family medical history, the last time that K.B. seemed well, when K.B. last used his arm normally, and when Mother first noticed that K.B. was not using his injured arm normally. Id. at 13, 15-16. Doctor Brennan testified that Mother was not aware of K.B. suffering any kind of traumatic episode to precipitate the injuries, id. at 20-21, and that Mother admitted she and Father were K.B.’s primary caregivers. Id. at 26. Doctor Brennan also testified that after evaluating K.B., he concluded that K.B. had no skeletal abnormalities and discovered nothing in K.B.’s medical history or lab work that would lead him to believe that K.B.’s bones were more susceptible to breaking or that he suffered from any kind of nutritional deficiency or metabolic disorder. See N.T. Dependency/Abuse Hearing, 11/8/19, at 13-14, 28. According to the additional imaging done at CHOP, Dr. Brennan was able to discern, to a reasonable degree of medical certainty, that there were no signs of healing in either of K.B.’s two fractures, which suggested that the fractures were fresh and had occurred within 7-10 days prior¹⁰ to the imaging. Id. at 14. CHOP doctors determined that the injuries were caused by some sort of non-accidental trauma, and that the fractures were highly indicative of an abusive or inflicted type of injury. Id. at 24. In his expert opinion, Dr. Brennan testified that, to a reasonable degree of medical certainty, K.B. was a victim of child abuse. Id. at 27.

On October 14, 2019, the Philadelphia Department of Human Services (DHS) received a Child Protective Services (CPS) report (Report) alleging that five-month-old K.B. had arrived at CHOP with unexplained injuries of a broken upper right arm and fractures to his right shoulder. Social workers from DHS spoke to the family at CHOP. Mother and Father were both questioned by police about K.B.’s injuries; neither parent knew how K.B. sustained his injuries. Parents also did not report anything negative about K.B.’s caregivers to DHS or authorities. Mother, Father, Babysitter #1, Babysitter #2, and Paternal Grandmother were initially listed as potential perpetrators of abuse on the Report. DHS social worker Krista Gilmore, who investigated the abuse allegations, determined that K.B. was likely injured between late Sunday evening on the 13^th and Monday morning on the 14^th "[b]ased on the interviews,^{[11 ]} based on the medical evidence, and based on the fact that everyone said that [K.B.] was fine until Monday morning." Id. , 12/16/19, at 86-87. In Ms. Gilmore's DHS report, she noted that Paternal Grandmother "notified [Father] around 7 AM on Monday morning that [K.B.]’s right arm was red and swollen. [Father] reported that he then notified [Mother] and they decided to take [K.B.] to the E[mergency] R[oom]." DHS Report, 11/18/19, at 3. Furthermore, Mother told Gilmore that "[Father] came to her Monday morning about [K.B.’s] arm [and that she then] got dressed, got [A.B.] dressed[,] and went to see [K.B.’s] arm. [Then, she and Father] agreed that she would take [K.B.] to Virtua Hospital while [Father] dropped the rest of the children off [at] school/daycare." Id.

Although Gilmore concluded that Father and Mother are well bonded with Children and are capable of meeting their needs and keeping them safe,¹² she ultimately determined that the report was indicated with regard to Mother, Father, and Paternal Grandmother as to K.B.’s injuries. Specifically, Gilmore identified these three individuals as indicated perpetrators of abuse because "[she] could not place them outside of the location at the time frame ... that [DHS] had." Id. at 80, 120.

Children were taken into protective custody on October 16, 2019. A shelter care hearing took place on October 17, 2019, after which Children were ordered to remain in DHS's custody. At the time of the hearing, Y.C., C.B. and A.B. had been placed in kinship care with Father's mother, where the court permitted Parents to have supervised visits. When K.B. was released from CHOP, he also was placed in Father's mother's care.

DHS filed...