In re S.M.

1

IN THE INTEREST OF: S.M., A MINOR APPEAL OF: T.M., FATHER

No. 2042 EDA 2022

No. J-S40032-22

Superior Court of Pennsylvania

December 16, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered July 21, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s) CP-51-DP-0000081-2021

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, P.J., STABILE, J., and KING, J.

MEMORANDUM

KING J.

Appellant T.M. ("Father"), appeals from the order entered in the Philadelphia County Court of Common Pleas, which adjudicated S.M. ("Child"), born in March 2020, dependent, and entered a finding of abuse against Father and S.G. ("Mother").^[1] We affirm.

The relevant facts and procedural history of this case are as follows. On January 17, 2021, police responded to a report of a domestic disturbance in the house of Father and Mother. During their investigation, police observed injuries on S.M.'s face and took her to the Children's Hospital of Philadelphia ("CHOP") for examination. At the hospital, the emergency department team observed bruising and marks on S.M.'s face and in the whites of her eyes that were inconsistent with Father and Mother's report that S.M. received her injuries after falling off the bed earlier that morning. S.M. was referred for a child abuse consultation, which was conducted by Dr. Anish Raj from CHOP's child protection team. After his evaluation, Dr. Raj opined that a single fall from the bed did not line up with the observed injuries.

On January 26, 2021, the Philadelphia Department of Human Services ("DHS") obtained an Order of Protective Custody for Child, and she was placed in foster care. After a shelter care hearing on January 27, 2021, the court found that it would not be in S.M.'s best interest to return to either parent's care. The court granted parents weekly supervised visits with Child.

On February 8, 2021, DHS filed a petition for dependency alleging that Child was a dependent child under the Juvenile Act,^[2] and that she was a victim of child abuse pursuant to the Child Protective Services Law.^[3] The trial court conducted hearings on DHS's petition on September 23, 2021, March 16, 2022, and July 21, 2022.

At the first hearing, DHS presented the expert testimony of Dr. Raj. Dr. Raj explained that when he evaluated Child at the hospital, he observed notable bruising on the left side of Child's face including on her left cheek, her chin, and the left side of her neck. Dr. Raj also observed subconjunctival hemorrhages-burst blood vessels-on the whites of Child's left eye. He explained that he could not quantify the level of pain suffered by Child but explained that her facial injuries would likely have caused her to "cry, which can be a communication of pain or discomfort." (N.T. Hearing, 9/23/21, at 38). Dr. Raj testified that the additional tests and screenings for possible injuries came back normal.

Dr. Raj opined that a single fall from a bed did not line up with the distribution of Child's bruising on multiple planes of her face. (Id. at 40). He explained:

[T]he rationale for that was, again, when we think about a simple household fall, we would expect bruising or injuries… on one area where the impact would be. The impact site. We would not expect…the extension.

You wouldn't expect it to extend down to the neck, up into the eye, and over to the chin. That…wrapping motion would not be consistent with a simple fall.

(Id. at 32-33). Ultimately, Dr. Raj opined that Child's injuries were the result of a non-accidental or inflicted trauma. (Id. at 32).

On the second day of hearings, March 16, 2022, DHS introduced testimony of Corporal William Young of the Tinicum Township Police Department. Corporal Young testified that he responded to a report of domestic assault at the house. Soon after he arrived, Mother showed up at the house and claimed that she had been assaulted by Father. Mother showed no signs of assault, and Corporal Young explained that there was no probable cause for arrest. Mother became very emotional and upset and stated to Corporal Young that "the baby had been assaulted." (N.T. Hearing, 3/16/22, at 13). Corporal Young then looked at Child and noticed marks and swelling on her face and a hemorrhage in her left eye.

Corporal Young explained that when he asked about Child's injuries, Father said Child had fallen off the bed sometime that morning. Corporal Young asked to see the bed from which Child fell. Corporal Young testified that the bed off of which Child allegedly fell was basically a mattress that was on the floor, so the height of the fall would have been "the thickness of the mattress…maybe 10-12 inches." (Id. at 14).

Next, Chief James Simkins testified about his interview of Father and Mother a couple days after the incident. He explained that Mother refused to provide a written statement. Mother also recanted her earlier assertion that Father had struck the child and maintained that child fell from the bed. (Id. at 38-39). Chief Simkins took a written statement from Father, in which Father explained that he was home downstairs and heard the child "screaming like crying really loudly. He went upstairs, found the child on the bed and that [Mother] had told him that the child had fallen off the bed." (Id. at 40).

DHS also called Karen Kilson from the Delaware County Children and Youth Services ("DCCYS"). Ms. Kilson testified that she interviewed Father and Mother about Child's injuries. Father told her that Child fell off the bed. (Id. at 64-65). Mother initially told her that Father had assaulted Child, then later told her that Child had fallen from the bed. (Id. at 62).

Finally, DHS called Robyn Crosby, the Community Umbrella Agency ("CUA") case manager.^[4] Ms. Crosby went to CHOP to see Child and testified that she "observed what appeared to look like a handprint on her face." (Id. at 72). Ms. Crosby explained that she spoke with Father who stated that he was in the basement and heard a loud thump noise as if someone fell off the bed, heard Child crying, then ran upstairs, and noticed that Child was crying and her "face was turning red, so he called rescue squad." (Id. at 74).

On the final day of hearing, on July 21, 2022, Father testified that on January 17, 2021, he was in the basement of his home while Mother and Child were upstairs on the second floor. He testified that he "heard a loud thump, like, 'thump waah.' The baby started crying…real loud." (N.T. Hearing 7/21/22, at 27). Father then stated he ran upstairs and took the child. Father explained that he was able to calm Child down within a couple of minutes and that he did not observe any bruising or injuries on Child. (Id. at 28-30). Father explained that he was surprised that Child needed to be taken to the hospital for her injuries. (Id. at 48). Father denied striking Mother or Child and suggested to the court that Mother caused Child's injuries and tried to cover it up. (Id. at 49).

Following the parties' closing arguments, the trial court adjudicated Child dependent and entered a finding of child abuse against both Father and Mother. In setting forth its findings, the court explained:

So, to be clear, [DHS] is not seeking a finding of child abuse as to [M]other and [F]ather under the normal standards. They are seeking the finding under…23 Pa.C.S [6381(d)]…

…that is the presumption of child abuse. So let's start with- let me be clear. That is a rebuttable presumption. This is not an easy case to decide, but let's start with the testimony from Dr. Raj…from CHOP. And he was a pediatrician that saw [Child] when she went to CHOP.

All counsel stipulated at the hearing, November 23, [20]21, that he was an expert in pediatrics. There was no stipulation as to him being an expert in child abuse. Nonetheless, this [c]ourt qualified Dr. Raj as an expert in child abuse, based on both the cross-examination of him and redirect by [DHS].

What leads this [c]ourt to believe that there was, in fact, child abuse is the testimony of Dr. Raj, most specifically that, with the physical exam that was done, there was bruising of [Child] on the left side of her neck, red spots in her left eye, and bruising on her chin.

While the CT scans were negative, while the results for bleeding and clotting disorder were negative, while the subsequent skeletal survey was negative, the doctor also testified that the injuries and bruising in multiple planes of the face were not consistent with a fall off the bed.

Father reported that the bed was…the floor was hardwood and there were no items on the floor. And Dr. Raj further went on to explain that the bruising for [Child] was down her chin and up to her eye, and the red marks in her eye whites were actually burst blood vessels.

That is what made him indicate that, to reasonable degree of medical certainty, this was child abuse, and he labeled it child abuse because it was concerning for trauma. Specifically, the injuries would not be normal for a child her age in a fall off the bed, from the height of this particular bed, a mattress on the floor, so, not necessarily considered a bed. That height was not sufficient for the level of injury she sustained.

…Police Officer William Young and Detective James Simpkins also confirmed that the mattress was on the floor. So, only 12 to 18 inches, I believe, was the height that they gave, from the top of the bed to the bottom-to the floor, where she reportedly fell.

On cross-examination, Dr. Raj reiterated that a fall from the bed was not consistent with the multiple planes of injuries, and he explained that it's a fact that there's bruising on her cheek, but then on her chin, and also the red dots in her eye. Dr. Raj also, on cross-examination by counsel for [M]other,

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