Opinion
J-S65014-16 No. 494 WDA 2016
09-22-2016
IN THE INTEREST OF: Z.P., A MINOR APPEAL OF: L.P. AND J.P., NATURAL PARENTS
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order March 8, 2016
In the Court of Common Pleas of Cambria County
Domestic Relations at No(s): CP-11-DP-004-2016, FID 11-FN-008-2016 BEFORE: LAZARUS, J., OLSON, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
L.P., Mother, and J.P., Father, (collectively "Parents"), are the natural parents of Z.P., a minor. Parents appeal from the order entered in the Court of Common Pleas of Cambria County adjudicating Z.P. dependent as defined in section 6302 of the Juvenile Act. After our review, we affirm.
Section 6302, "Dependent child," provides, in relevant part:
A child who:42 Pa.C.S. § 6302.
(1) 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. 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, including evidence of the parent's, guardian's or other custodian's use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]
On December 18, 2015, Cambria County Children and Youth Services (CYS) received a report of physical abuse of Z.P., who was three months old, by Father. On that date, Mother was at work. Father had placed Z.P. in a rocking bassinet and left the room to do laundry. Father reported that when he returned, he found the bassinet had been tipped over, and Z.P. was wedged between the bassinet and the couch. Father picked Z.P. up and comforted him, at which time Z.P. stiffened, arched his back, looked dazed and became unresponsive. Father called 911 and emergency medical services transported Z.P. to the emergency room at Conemaugh Valley Memorial Hospital (CVMH).
Father reported to CVMH staff that the family cat may have knocked over the bassinet (the family has a cat and two large dogs). A CT scan indicated a subdural hematoma. Thereafter, Z.P. was transferred to the ICU at Children's Hospital ("Children's") in Pittsburgh. At Children's, Father reported that he believed one of the family's dogs, an 80-pound Boxer may have knocked over the bassinet.
At the dependency hearing, both Mother and Father testified. Father testified that he did not tell CVMH staff that the cat might have caused the accident; he stated that he remembered reporting that maybe one of the dogs, the Boxer, had caused the accident. N.T. Dependency Hearing, 3/7/16, at 94. He denied ever shaking Z.P. Id. at 101. Father testified that he was honorably discharged from the Air Force following a bus accident in Kuwait, where he was stationed as a military police officer. As a result of the accident, Father suffered a hip injury. He also suffered emotional trauma due to the fact he was unable to assist injured civilians because the accident occurred during Ramadan, and religious and legal prohibitions prevented civilian aid during this time. Several civilians died. Id. at 96-100. Father was diagnosed with mild Post Traumatic Stress Disorder (PTSD), but stated that he did not get counseling for it, and that it "was maintained and under control." Id. at 98. Father indicated his willingness to cooperate with CYS.
Mother testified that when she received the message that Z.P. was injured, she went home to get a car seat, believing Z.P. would be released that day. At home, she saw the bassinet on its side near the couch. Id. at 86. She also testified that they have two large dogs, an English Mastiff and a Boxer, and a cat. Id. Mother testified that she remembered reporting to CVMH staff that the dog may have knocked over the bassinet; she denied ever reporting that it may have been the cat. Id. at 86-87.
Doctor Jennifer Wolford, a board certified pediatrician, testified that in addition to reviewing the records from CVMH, she performed various diagnostic tests on Z.P. during his three-day stay in the Children's ICU. She also obtained a medical history from Parents. An MRI confirmed Z.P.'s subdural hematoma; eye examinations revealed retinal bleeding in both eyes. Id. at 6-8. Dr. Wolford testified that both the subdural hematoma and the retinal bleedings were recent, and that based on her experience and training, Z.P.'s injuries were caused by abusive trauma resulting from severe shaking, known as "shaken-baby syndrome." Id. at 10-11. She further opined that the injuries were not consistent with a fall:
A: [I]t's my medical assessment that [Z.P.] showed symptoms: unresponsiveness, not waking up, arching his back, stiffening, the subdural hematomas and the bilateral retinal hemorrhages that this is the result of violent shaking back and forth and that this is the result of abusive trauma to this child, so this is abusive head trauma and that it is the shaking and the shearing force back and forth that caused this brain injury and these retinal hemorrhage in all four quadrants, both eyes, out to the periphery.
Q: If a child fell, and I'm just talking about these bilateral retinal hemorrhaging at this time, not about the subdural hematoma. But if a child fell and he developed, he got bilateral retinal hemorrhaging, how far in a distance . . . based upon your education and experience, how far would a child have to fall to cause him to get bilateral retinal hemorrhaging? A distance; two feet, one foot, four feet, ten?
A: Right. So again, I use the example of the accidental roll off the bed or off the changing table, and in those falls we do not see retinal hemorrhages. So that's three to four feet off a changing table. Off a bed obviously it's about 30 inches and we do not see retinal hemorrhages. We certainly can't drop children to see what causes retinal hemorrhages, but from computer
modeling we know that it's estimated that a fall of a height about three stories would cause these types of injuries.Id. at 14-15. Dr. Wolford opined within a reasonable degree of medical certainty, that Z.P. had been the victim of shaken-baby syndrome, or abusive head trauma. Id. at 16.
Doctor Jonathan Arden, board certified in anatomic and forensic pathology, testified as rebuttal expert. He did not examine Z.P.; however, he reviewed Z.P.'s medical records, including the MRI and CT scans, the same medical records and diagnostic test results that Dr. Wolford had examined. Doctor Arden agreed with Dr. Wolford's conclusion that there was no biological cause for the injuries, but he disagreed the cause was shaken-baby syndrome. Id. at 38-39. He stated that trauma Z.P. suffered at birth (c-section with use of forceps) could have caused a subdural hematoma and that Z.P.'s fall caused a "re-bleed" of the birth injury; in other words, that such injuries can also be related to impact. Id. at 40, 47-48. Doctor Arden acknowledged, however, that these injuries were rare. Id. at 47. Doctor Arden also acknowledged, on cross-examination, that the medical and investigative reports indicated that Z.P. did not hit the floor, but was wedged between the rocker and the couch. Id. at 59. He also acknowledged that the bilateral retinal hemorrhage and the acute subdural hematoma that Z.P. suffered were consistent with shaken-baby syndrome. Id. at 58.
Detective George Musulin of the West Hills Regional Police Department testified that he went to Parents' home and observed the scene of the accident as well as the family cat and two large dogs. He stated that Father's written and verbal statements were consistent with the history in the medical records. Detective Musulin testified that Father reported that he believed the dog had caused the accident. Id. at 77.
Following the hearing, the court found that CYS had established, by clear and convincing evidence, that: Z.P. was a victim of physical abuse pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6303(b.1)(8)(iii); Father is the perpetrator pursuant to 23 Pa.C.S. § 6303; and Z.P. is a dependent child pursuant to section 6302 of the Juvenile Act. See 42 Pa.C.S. § 6302, supra at note 1. See also N.T. Dependency Hearing, 3/7/16, at 104-08. The court ordered Z.P. remain in the legal and physical custody of Mother, and further ordered that
Child abuse.-- The term "child abuse" shall mean intentionally, knowingly or recklessly doing any of the following:
* * *
(8) Engaging in any of the following recent acts:
23 Pa.C.S. § 6301(b.1)(8)(iii).
* * *
(iii) Forcefully shaking a child under one year of age.
"Perpetrator." A person who has committed child abuse as defined in this section. The following shall apply:
(1) The term includes only the following:
23 Pa.C.S. § 6303(1)(i).(i) A parent of the child.
* * *
[Father] can remain in the home under the condition that he have no unsupervised contact with [Z.P.] Any unsupervised contact will result in immediate removal of [Z.P.] from the residence and the child shall be taken into the care and custody of Cambria County Children and Youth Services. [Father] is to have no unsupervised contact with [Z.P.] until further order of the court. [Father] is to immediately begin PTSD counseling and anger management classes.Order, 3/8/16.
Parents filed this appeal. The trial court ordered Parents to file a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Parents raise the following claims:
1. Whether Cambria County Children and Youth Services met its burden of proof in establishing by clear and convincing evidence that Z.P. was a dependent child pursuant to 42 Pa.C.S. § 6301 et seq. where there was insufficient evidence upon which the court could find Mother was unfit.
2. Whether the court's finding that Z.P. was an abused child is against the weight of the evidence.
3. Whether trial counsel was ineffective for failing to object to the expert medical testimony that "subdural hemorrhage and bi-lateral retinal hemorrhaging were a result of
shaking," which fails to meet the Frye[] admissibility standard.
4. Whether the trial judge, Judge Tamara R. Bernstein, should have recused, and whether counsel was ineffective for failing to file a motion for recusal.
Frye v. United States , 293 F. 1013 (D.C.Cir.1923) ("Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."). See Commonwealth v. Topa , 369 A.2d 1277 (Pa. 1977) (adopting Frye test). See also Blum v. Merrell Dow Pharmaceuticals , Inc., 705 A.2d 1314 (Pa. Super. 1997).
"[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." In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Nevertheless, we accord great weight to the trial court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses. In re M.K., 636 A.2d 198, 201 (Pa. Super. 1994). "[E]ven where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment[.]" In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012), citing In re Adoption of Atencio , 650 A.2d 1064, 1066 (Pa. 1994). Instead, we defer to the trial judge, so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error or abuse of discretion. S.P., 47 A.3d at 817. We note also that the Juvenile Act grants juvenile courts broad discretion when determining an appropriate disposition, and that disposition will be overturned only upon a showing of a manifest abuse of discretion. Interest of C.A.G., 89 A.3d 704, 709 (Pa. Super. 2014)
After our review, we are satisfied that the record reflects a comprehensive inquiry and that the court applied the appropriate legal principles and standards. See Matter of George , 414 A.2d 1063 (Pa. Super. 1979). The court's findings are supported by the record, and we discern no error or abuse of discretion. S.P., supra. We are also satisfied that the trial court's May 6, 2016 opinion properly disposes of Parents' claims on appeal and therefore we rely on that opinion to affirm the March 8, 2016 order adjudicating Z.P. dependent.
We note that the brief filed on behalf of the guardian ad litem adopts the argument and position of CYS. See Brief for Appellee, Guardian Ad Litem, at 3-5.
Additionally, because we find Parents' claims to be meritless, we find their ineffectiveness challenges with respect to the Frye issue and the recusal issue meritless as well. See In re S.M., 614 A.2d 312, 316 (Pa. Super. 1992) (to succeed on ineffectiveness claim in dependency proceeding, "appellant must make a strong showing of ineffectiveness of counsel. [T]he parent must come forward with evidence that indicates to a high degree of likelihood that but for an unprofessional error on the part of counsel, the child would not have been found to be dependent."). We agree with the court's analysis in its opinion that Parents' contention that Judge Bernstein was impartial because she had, in her former position as a prosecutor, prosecuted a shaken-baby case is indeed the "start of a quick slide down a very slippery slope[.]" Trial Court Opinion, 5/6/16, at 15.
We affirm the March 8, 2016 dependency order based on the juvenile court's opinion, and we direct the parties to attach a copy of that opinion in the event of further proceedings.
Order affirmed.
PLATT, J., Joins the memorandum.
OLSON, J., Concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/22/2016
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