In re X.F.

1

IN THE INTEREST OF: X.F., A MINOR APPEAL OF: Z.F. AND W.F., FATHER AND MOTHER IN THE INTEREST OF: O.F., A MINOR APPEAL OF: Z.F. AND W.F., FATHER AND MOTHER

No. 1149 MDA 2022, 1150 MDA 2022

No. J-A04016-23

Superior Court of Pennsylvania

March 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered August 10, 2022 In the Court of Common Pleas of Lancaster County Juvenile Division at No(s) CP-36-DP-0000019-2022, CP-36-DP-0000020-2022

Joseph D. Seletyn, Esq.

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM

DUBOW J.

Z.F ("Father") and W.F. ("Mother") (collectively, "Parents") appeal from the August 10, 2022 orders^[1] that adjudicated their children, X.F. and O.F. (collectively, "Children"), dependent and found Parents to be perpetrators of child abuse against O.F ("Baby"). Upon careful review, we affirm.

In its Opinion, the trial court set forth the relevant factual and procedural history of this case and we adopt its detailed recitation for purposes of this appeal. See Trial Ct. Op., 9/13/22, at 1-8. In sum, on January 9, 2022, Parents were living in a house with one-year-old X.F., one-month-old Baby, and Father's parents ("Paternal Grandparents"), who assisted in taking care of Children, when Baby became lethargic. Parents took Baby to an urgent care facility, and, upon examination, physicians directed Baby to be transported to Hershey Medical Center via ambulance. Upon arrival, Baby continued to be lethargic, presented with a firm and bulging fontanelle, and had visible bruising on his abdomen, left shoulder, left arm, and left flank. Baby had retinal hemorrhages through the entire retina of both eyes, which were too numerous to count. A CT scan revealed blood in and around the brain and, most concerning, a midline shift, which is a life-threatening condition where one side of the brain is pushed over by bleeding on the outside of the brain. Baby underwent emergency neurosurgery to relieve the pressure on his brain. Surgeons discovered that part of Baby's brain tissue was necrotic and performed a partial lobectomy to remove the dead parts of his brain. Post-surgery MRI and MRV study results indicated that all of Baby's blood vessels and arteries were intact, and there was no sign of arterial aneurysm. However, Baby suffered permanent brain damage because of the blood in and around his brain.

Lori Frasier, M.D., the director of the Hershey Medical Center Child Protection team, was on call when Baby was transported to the emergency room and consulted on the case. Dr. Frasier utilized Baby's medical records, x-rays, brain scans, blood work, and other reports to perform an assessment of whether child abuse occurred. In the Child Protection Team Inpatient Consultation Report (the "Report"), Dr. Frasier concluded that Baby's injuries were the result of inflicted bruising and severe abusive head trauma, including shaking. The Report also indicated that the Emergency Department certified Baby as a near fatality.

On the same day, the Lancaster County Children and Youth Social Service Agency (the "Agency") received a report alleging that Baby had suffered non-accidental head trauma.

On January 10, 2022, an Agency caseworker met with Parents to develop a safety plan for Baby, who remained in critical condition, and to question Parents regarding Baby's injuries. Parents provided information that, on January 8, 2022, Baby fed and slept normally. Likewise, on January 9, 2022, Baby ate a normal amount during his 10:30 AM feeding. However, that afternoon while Baby was in the care of Paternal Grandmother and parents were at the grocery store, Baby ate less than normal. Baby became increasingly lethargic throughout the day and Parents transported him to urgent care. Neither Parents nor Paternal Grandparents could explain Baby's injuries.

Also on January 10, 2022, X.F. underwent a skeletal and physical exam which did not reveal any past or present injuries. On the same day, pursuant to a safety plan, the Agency placed X.F. in the care of his paternal aunt. On January 26, 2022, Baby was also discharged to the care of his paternal aunt. During this time, Parents and Paternal Grandparents ceased communication with the Agency and refused to answer additional questions. After investigation, the Agency indicated Parents and Paternal Grandparents as perpetrators of child abuse against Baby.

On February 9, 2022, upon consideration of the Agency's shelter care applications, the trial court granted the Agency temporary legal and physical custody of Children. On the same day, the Agency filed dependency petitions alleging that both Children were without proper parental care and control and alleging that Baby was the victim of child abuse.

The trial court held hearings on May 5, 2022, and July 14, 2022. The Agency presented testimony from Dr. Frasier, an expert in child abuse pediatrics, and Joshua Robinette, an Agency caseworker supervisor. Parents presented testimony from Joseph Scheller, M.D., an expert in pediatric neurology, neurology, and neuroimaging, and Natalie Kecki, who is married to Father's brother.

In sum, Dr. Frasier and Mr. Robinette testified to the above events. Additionally, Dr. Frasier testified that Baby did not have a burst aneurysm because the bleeding did not come from the base of Baby's brain. Dr. Frasier concluded that Baby suffered abusive head trauma due to violent shaking, possibly with impact, based upon Baby's retinal hemorrhages and his massive bleeding.

Dr. Scheller testified that, in his opinion, Baby suffered from a burst aneurysm on January 9, 2022, causing Baby to become lethargic and pale. Dr. Scheller testified that an artery in Baby's brain burst and sprayed blood in Baby's brain disrupting the circulation, and that such a condition is life-threatening. Dr. Scheller opined that Baby suffered from a medical condition rather than child abuse.

Ms. Kecki testified that she has known Father for 14 years and met Mother a few years ago when Parents married. Ms. Kecki stated that she saw Parents and X.F. often. Ms. Kecki described Father as attentive, kind, and playful with X.F. and Mother as very nurturing and attentive with X.F. Ms. Kecki has never seen Father hit, shake, throw, or injure X.F.

On August 10, 2022, the trial court adjudicated Children dependent. Additionally, the court found that Baby was the victim of child abuse because Parents and Paternal Grandparents caused bodily injury to Baby through a recent act or failure to act.

Parents timely appealed. Both Parents and the trial court complied with Pa.R.A.P. 1925.

Parents raise the following issues for our review:

1. Did the trial court abuse its discretion and/or err as a matter of law in adjudicating [Baby] dependent and a victim of child abuse by ignoring expert testimony and evidence directly refuting the allegations as set forth by the Agency and failing to make a credibility determination on said testimony and evidence?

2. Did the trial court abuse its discretion and/or err as a matter of law in adjudicating X.F. dependent by ignoring expert testimony and evidence directly refuting the allegations as set forth by the Agency and failing to make a credibility determination on said testimony and evidence?

3. Did the trial court abuse its discretion and/or err as a matter of law in adjudicating X.F. dependent as the Agency failed to present any evidence, let alone prove by clear and convincing evidence, that X.F. was dependent independent from [Baby]?

Parents' Brief at 4.

We review findings in a dependency case for an abuse of discretion. In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015). This Court is required to accept the findings of fact and credibility determinations of the trial court if the record supports them, but not required to accept the lower court's inferences or conclusions of law. Id. "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." Interest of T.G., 208 A.3d 487, 490 (Pa. Super. 2019) (citation omitted). Notably, "we are not in a position to reweigh the evidence and the credibility determinations of the trial court." In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

To adjudicate a child dependent, a trial court must determine by clear and convincing evidence that the child, inter alia, "is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals." In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (citing 42 Pa.C.S. § 6302). Further, "[a] determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk[.]" 42 Pa.C.S. § 6302. Clear and convincing evidence is defined as testimony that is "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.B., 63 A.3d at 349 (citation omitted).

The overarching purpose of the Juvenile Act is "[t]o preserve the unity of the family whenever possible[.]" Id. (quoting 42 Pa.C.S. § 6301(b)(1)). Accordingly, "a child will only be declared dependent when he is presently without proper parental care and when such care is not immediately available." In Interest of R.T., 592 A.2d 55, 57 (Pa. Super. 1991) (citation omitted). This Court has defined "proper parental care" as care which is "geared to the particularized needs of the child and [,] at a minimum, is likely to prevent serious injury to the child." A.B., 63 A.3d at 349 (...