Opinion
J-S68013-17 No. 928 MDA 2017
12-01-2017
IN THE INTEREST OF: M.M.-A., A MINOR APPEAL OF: LACKAWANNA COUNTY CHILDREN AND YOUTH
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 10, 2017
In the Court of Common Pleas of Lackawanna County Civil Division at No(s): CP-35-DP-0000154-2016 BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
The Lackawanna County Office of Youth and Family Services ("Agency") appeals from the order, entered in the Court of Common Pleas of Lackawanna County, denying a finding of child abuse and ordering bone density and genetic testing of the minor, M.M.-A. ("Child"). Upon careful review, we affirm.
On November 12, 2016, Child, then three months old, was taken by her parents to Moses Taylor Hospital for treatment of a possible cold. During treatment, hospital staff discovered that Child had multiple rib fractures, for which her parents, V.A. and A.M. (collectively, "Parents") had no explanation. Child and her sister - who did not present with any injuries - were taken into protective custody based upon Child's unexplained injuries.
It was ultimately determined that Child had approximately 38 rib fractures.
On November 15, 2016, the Agency filed a petition seeking a finding of dependency of Child and also seeking a finding of child abuse against Parents pursuant to the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-6386 (the "Act"). After a multi-day adjudication hearing, on May 10, 2017, the trial court issued findings of fact and conclusions of law, as well as an order adjudicating Child to be dependent pursuant to 42 Pa.C.S.A. § 6302, based on evidence that Child suffered 38 rib fractures while in Parents' care and control, as well as the fact that Child had been diagnosed with failure to thrive. The court declined, however, to issue a finding that Child was a victim of abuse. The court also ordered further health evaluations in the form of testing for genetic disorders and/or bone deficiency disorders.
On June 7, 2017, the Agency filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2). The Agency raises the following claims for our review:
1. Whether the [t]rial [j]udge erred . . . and/or abused her discretion by not determining credibility of witnesses, including expert witnesses and resolving conflicts in the testimony?
2. Whether the trial judge erred and/or abused her discretion by not making a finding of child abuse against the parents.
3. Whether the trial judge erred and/or abused her discretion in reviewing the medical testimony by admitting novel medical testimony from Doctors Holick, Hyman and Gootnick in violation of the Frye [] standard, and by accepting Dr.
Gootnick as a pediatric radiology expert despite a lack of qualifications or training in said specialty[?]Brief of Appellant, at 8.
4. Whether the trial judge erred and/or abused her discretion by finding that pediatrician Dr. Burke had diagnosed the child as fail[ing] to thrive (finding of fact #167) which is not supported by the evidence; and further erred and disregarded test results showing no evidence that the child had OI (osteogenesis imperfecta) and had normal Vitamin D levels, by ordering genetic testing, bone density disorders testing and [that the Agency] follow any and all recommendations when the experts agree [Ehlers-Danlos Syndrome] has no test to identify it, and no metabolic disease or genetic disorders of the child have been diagnosed by treating physicians[?]
Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) (holding novel scientific evidence admissible if methodology underlying evidence has general acceptance in relevant scientific community). --------
The Agency first asserts that the trial court erred and/or abused its discretion by failing to make determinations as to the credibility of witnesses, including expert witnesses, and failing to resolve conflicts in the testimony. This claim is meritless.
In this case, four different experts testified regarding the cause of Child's fractures. One of those experts, Kent Hymel, M.D., testifying on behalf of the Agency as an expert in child abuse pediatrics and pediatrics, concluded that the injuries were the result of child abuse. The other three experts concluded that Child's injuries had clinical explanations and were not caused by abuse. Susan Gootnick, M.D., an expert in pediatric radiology, testified that she was certain that Child's fractures were caused by rickets and that there was no evidence of non-accidental trauma. Charles Hyman, M.D., an expert in child abuse, testified that Child suffered from bone fragility and that rickets was a possible contributing factor. Doctor Hyman further testified that there were "absolutely no objective criteria that there was abuse." N.T. Hearing, 7/5/17, at 68. Finally, Michael Holick, M.D., Ph.D., testified as an expert in endocrinology, metabolism and nutrition, calcium, collagen disorders, metabolic bone disease, and Vitamin D deficiencies. Doctor Holick diagnosed both of Child's parents with EDS, hypermobility type 3. As a result, Dr. Holick determined that Child had a 75% chance of also suffering from that genetic disorder, which would place her at higher risk of bone fracture.
In its opinion, the trial court stated that it "considered the direct and circumstantial evidence and expert medical opinions" presented by the Agency. However, the court ultimately found more compelling the testimony of the three other experts who each concluded, to a reasonable degree of medical certainty, that Child's injuries were not the result of non-accidental trauma. In making this determination, the court factored in other evidence, including that Parents regularly took Child for medical visits to both her pediatrician and specialists and that Child's physician, a mandatory reporter, never made any reports of child abuse. See Trial Court Opinion, 5/7/17, at 5-6. In sum, it is apparent that the trial court weighed the evidence before it, resolved any conflicts in testimony to the best of its ability based on the totality of the evidence presented, and concluded that the Agency failed to establish by clear and convincing evidence that Parents had abused Child. We can discern no abuse of discretion.
The Agency next claims that the trial court erred and/or abused its discretion by failing to make a finding of child abuse against Parents. The Agency asserts that it presented clear and convincing evidence that Parents were reckless with respect to Child's torn frenulum as well as her fractured ribs and, as a result, the court should have made a finding of abuse under section 6303(b.1) of the Act. This claim is meritless.
We begin by noting our standard and scope of review in dependency cases:
The standard of review which this Court employs in cases of dependency is broad. However, the scope of review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence.Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997), quoting In re R.R., 686 A.2d 1316, 1317 (Pa. Super. 1996) (citations omitted).
Child abuse is defined under section 6303 of the Act, in relevant part, as follows:
(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). A finding of abuse must be supported by clear and convincing evidence. In Interest of J.R.W., 631 A.2d 1019, 1024 (Pa. Super. 1993).(1) Causing bodily injury to a child through any recent act or failure to act.
. . .
(5) Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act.
Here, the Agency asserts that it met its burden of establishing Parents' recklessness in causing damage to Child's frenulum and her rib fractures. With respect to the torn frenulum, the Agency cites the testimony of Dr. Hymel that Child could not have caused the injury to herself and the injury could have been caused by a bottle being forced in Child's mouth. The Agency asserts that Dr. Hyman's testimony, that frenulum injuries in children are very common, was "not specific enough to be convincing." Brief of Appellant, at 14. As to Child's rib fractures, the Agency cites Parents' claim that they did not know how the injuries occurred and the testimony of Dr. Hymel, who excluded metabolic bone disease as a potential cause and, instead, "gave a solid opinion with a reasonable degree of medical certainty of physical abuse." Id. at 16. Based on this evidence, the Agency claims that it established that Parents acted recklessly and that the court erred in failing to make a finding of child abuse as defined in section 6303(b.1) of the Act.
In presenting this claim, the Agency is essentially asking this Court to reweigh the evidence in its favor. That, however, is not our role. Rather, we must defer to the trial court, who sees and hears the witnesses, can determine their credibility and, ultimately, renders a decision informed by the court's own observations and its longitudinal understanding of the case. So long as the court's conclusions are supported by the record, we are in no position to disturb its decision. Matter of C.R.S., supra.
Although Dr. Hymel opined that Child's injuries were the result of abuse, the trial court heard from multiple other witnesses, both fact and expert, who concluded otherwise. Child's own pediatrician, Christine Burke, M.D., testified that she never suspected that Child's torn frenulum was non-accidental. Rather, based on the large size of the nipple on Child's bottle, Dr. Burke concluded that the tear likely came from pressure exerted by the nipple. Doctor Hyman also testified that torn frenula are "very common" in children and can be caused by bottles or pacifiers. N.T. Hearing, 5/3/17, at 52. He concluded that Child's torn frenulum was "absolutely" not caused by abuse. Id. at 56. Similarly, with regard to the rib fractures, three experts testified as to their belief that the fractures were caused not by non-accidental trauma, but rather by bone fragility.
It was within the province of the trial court to evaluate and weigh the conflicting testimony and arrive at a finding based on its determination as to the credibility of the witnesses. See Commonwealth v. Ratushny , 17 A.3d 1269, 1272 (Pa. Super. 2011) ("The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record."). Accordingly, we decline the Agency's invitation to reweigh the evidence. The trial court's findings are supported by the record and will not be disturbed.
Next, the Agency claims that the trial court erred in admitting novel medical testimony from Drs. Holick, Hyman and Gootnick in violation of Frye. The Agency also alleges that the court erred in admitting Dr. Gootnick as an expert in pediatric radiology despite a lack of qualifications or training in that specialty. The first claim is waived and the second is meritless.
In determining whether novel scientific evidence is admissible in criminal trials, Pennsylvania courts apply the test set forth in Frye []. See Commonwealth v. Topa , [] 369 A.2d 1277 ([Pa.] 1977) (adopting the Frye test in Pennsylvania). Under Frye , novel scientific evidence is admissible if the methodology that underlies the evidence has general acceptance in the relevant scientific community. See Grady v. Frito-Lay , Inc., [] 839 A.2d 1038, 1044-1045 ([Pa.] 2003). While the United States Supreme Court has since found that the Frye test has been superseded by the more permissive Federal Rules of Evidence, see Daubert v. Merrell Dow Pharmaceuticals , Inc., 509 U.S. 579 [] (1993), Pennsylvania courts are not bound by the Federal Rules of Evidence, and continue to apply the Frye standard, see Grady , [] 839 A.2d at 1044.Commonwealth v. Einhorn , 911 A.2d 960, 974-75 (Pa. Super. 2006). "Whether a witness is qualified to render opinions and whether his testimony passes the Frye test are two distinct inquiries that must be raised and developed separately by the parties, and ruled upon separately by the trial courts." Grady v. Frito-Lay , Inc., 839 A.2d at 1045-46.
While the Agency now claims that the testimony of Drs. Holick, Hyman and Gootnick was inadmissible pursuant to Frye , it never filed a motion seeking to preclude the doctors' testimony on the basis of Frye , nor did the Agency raise the issue at all at the time of hearing in this case. Generally, "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P., Rule 302(a). Because the Agency failed to preserve this claim in the trial court, the issue is waived.
The Agency also claims that the trial court erred in admitting Dr. Gootnick as an expert in pediatric radiology. This claim is premised solely on the fact that Dr. Gootnick is not a Board Certified pediatric radiologist. The Agency is entitled to no relief.
The admission or exclusion of evidence, including the admission of testimony from an expert witness, is within the sound discretion of the trial court. We may only reverse upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.McClain ex rel. Thomas v. Welker , 761 A.2d 155, 156 (Pa. Super. 2000) (citation, ellipses and brackets omitted).
In Miller v. Brass Rail Tavern , 664 A.2d 525 (Pa. 1995), our Supreme Court held that a witness without a medical degree, who acted in the dual role of mortician and county coroner, could give expert testimony as to time of death. In doing so, the Court noted that
[i]t is well established in this Commonwealth that the standard for qualification of an expert witness is a liberal one. The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.Id. at 528.
Here, Dr. Gootnick testified that she holds a medical degree and has been certified by the American Board of Radiology since 1977. She testified that she participated in a three-month rotation in pediatric imaging during her residency and reads pediatric radiological images on a daily basis as part of her practice. She testified that, at the time of her residency, there was no fellowship in pediatric radiology and that she has "more experience than somebody with a current pediatric [radiology] fellowship." N.T. Hearing, 5/4/17, at 8.
Based on the foregoing, it is readily apparent that Dr. Goodnick "possesses more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience" in pediatric radiology. McClain , 761 A.2d at 157, quoting Miller , 664 A.2d at 528. The fact that she does not hold a board certification in the specialty is of no moment. Accordingly, the trial court did not abuse its discretion in admitting Dr. Gootnick as an expert in pediatric radiology.
Finally, the Agency claims that the trial court erred in making a finding of fact that Dr. Burke, Child's pediatrician, had diagnosed Child with failure to thrive. The Agency further asserts that the court erred in ordering further testing to determine if Child suffers from any genetic bone density disorders. These claims are meritless.
We begin by noting that it is unclear as to how the Agency is aggrieved by either of these alleged errors. Indeed, it would appear that the Agency would look with favor upon the court's finding that Child was diagnosed with failure to thrive, as it was "[b]ased in part on Dr. Burke's testimony that Minor Child was diagnosed as failing to thrive . . . [that] this [c]ourt found that Minor Child was without proper parental care or control." Trial Court Opinion, 7/7/17, at 13. In any event, the Agency is incorrect that there is no support for this finding. Specifically, Dr. Burke testified as follows:
Q: In your treatment of [Child], was she ever treated as a baby that was one labelled as failure [sic] to thrive?N.T. Hearing, 3/23/17, at 16.
A: Yes, but it was difficult to distinguish because she was having so many mouth issues. I wasn't sure if that was contributing to her slow weight gain.
Similarly, the Agency's claim that the court erred in ordering genetic testing is meritless. "In a dependency case, a hearing court is given broad discretion in meeting the goal of entering a disposition 'best suited to the protection and physical, mental, and moral welfare of the child.'" In re S.M., 614 A.2d 312, 315 (Pa. Super. 1992), quoting In re Lowry , 484 A.2d 383 (Pa. 1984). In her Rule 1925(a) opinion, the Honorable Julia Munley cogently sets forth her rationale for ordering the tests of which the Agency complains. See Trial Court Opinion, 7/7/17, at 13-15. Based on Judge Munley's findings, we can discern no abuse of discretion on her part in ordering that Child undergo further testing to determine whether she suffers from any genetic disorders that may have contributed to or caused the injuries that form the basis for the adjudication of dependency. The parties are instructed to attach Judge Munley's opinion in the event of further proceedings in this matter. Order affirmed.
Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/1/2017
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