In re Interest of La.-Ra. W.
| Citation | 266 A.3d 1071 |
| Decision Date | 22 November 2021 |
| Docket Number | No. 479 EDA 2021, No. 478 EDA 2021, No. 359 EDA 2021,No. 354 EDA 2021,354 EDA 2021 |
| Parties | In the INTEREST OF: LA.-RA. W., a Minor Appeal of: C.W., Father In the Interest of: Ly.-Ro. W., a Minor Appeal of: C.W., Father In the Interest of: La.-Ra. W., a Minor Appeal of: S.P., Mother In the Interest of: Ly. -Ro. W., a Minor Appeal of: S.P., Mother |
| Court | Superior Court of Pennsylvania |
Michael E. Angelotti, Philadelphia, for Christion Wharton, appellant.
Tara B. Fung, City of Philadelphia Law Department, Philadelphia, for Department of Human Services, appellee.
Kathleen B. Kim, City of Philadelphia Law Department, Philadelphia, for Department of Human Services, appellee.
Robert D. Aversa, City of Philadelphia Law Department, Philadelphia, for Department of Human Services, appellee.
Kathleen A. Knese, Defender Association of Philadelphia, Philadelphia, for La.-Ra. W., a Minor and Guardian Ad Litem, participating parties.
Ilana F. Ehrlich, Defender Association of Philadelphia, Philadelphia, for La.-Ra. W., a Minor and Guardian Ad Litem, participating parties.
Alex M. Dutton, Philadelphia, for Symiyah Patton, participating party.
C.W. (Father) and S.P. (Mother) (collectively, Parents) appeal1 from the trial court's adjudicatory and dispositional orders finding that Parents’2 then-eight-week-old twin children, Ly. -Ro. W. and La.-Ra. W. (collectively, Children) (born 6/2019), were dependent3 and the victims of child abuse. After careful review, we affirm.
Children were born, full-term,4 in June 2019; each twin weighed over 5 pounds at birth. On August 7, 2019, the Department of Human Services (DHS) received a Child Protective Services (CPS) investigation report5 indicating that Parents had taken La. -Ra. W. (Child) to the Children's Hospital of Philadelphia (CHOP) after Mother noticed swelling in Child's right thigh the day before and also observed that Child had been fussy during diaper changes for the prior two to three days.6 N.T. Dependency/Abuse Hearing, 1/27/21, at 172, 175. Following an x-ray and magnetic resonance imaging (MRI), Child was diagnosed with a right femur fracture (with some signs of healing) and a bilateral, thin subdural hematoma. CHOP doctors also conducted a sibling evaluation for Child's twin, Ly. -Ro. W., that revealed no signs of trauma or fractures. Id. , 9/23/20, at 49.
DHS social workers met with Parents twice at CHOP; Parents consistently denied knowledge of Child having had any accidental trauma, including falls, drops or bumps. Id. at 34. Mother stated that she laid La. – Ra. down for a nap around 1:00 PM and that La. -Ra. woke up at 3:30 PM. When La. -Ra. awoke Mother noticed swelling on Child's right leg. Parents are Children's primary caregivers; at the time Children were injured, Father worked full-time for United Parcel Service (UPS) and Mother was a stay-at-home mom.7 Id. at 34; Id. , 1/27/21, at 170-71. Parents and Children reside with paternal great-grandfather and paternal aunt. Paternal great-grandfather does not look after Children; paternal aunt "sometimes look[s] after [ ] Children while [Mother] takes a shower or for a few minutes at a time[,] but did not provide care for [ ] Children." Trial Court Opinion, 4/22/21, at 4; N.T. Abuse/Dependency Hearing, 1/27/21 at 171-72. Children had no babysitters.8 N.T. Dependency/Abuse Hearing, 1/27/21, at 134-35, 171.
After reviewing x-rays and consulting with the Child Protection Team at CHOP, Dr. Colleen Bennett, the CHOP Attending Physician in Child Abuse Pediatrics and a qualified expert in child abuse, opined that Child's femur fracture was the result of significant force being applied to Child's leg (known as an "oblique" fracture ), most likely in a twisting motion. Both bone health tests9 and genetics testing were conducted; all test results were negative. Doctor Bennett ruled out that the fracture was a birth injury, self-inflicted injury, or the result of a genetic condition. Id. , 9/23/20, at 31, 33-34, 36, 43. The expert concluded that the fracture, which she deemed significant, "had some signs of healing[,]" which typically occurs in injuries sustained seven days to two weeks prior. Id. at 32. Moreover, Dr. Bennett opined that the fracture was not the type of injury that occurs when a baby puts his or her legs outside of a crib because they are not able to roll or move in the crib at eight-weeks-old. Id. at 34-36.
Similarly, Dr. Bennett opined, after reviewing x-rays and a brain MRI, that Child's hematoma was most likely not a result of birth trauma, a metabolic disorder, or a self-inflicted injury, id. at 39-40, 43, but was most likely caused by violent force as a result of the head moving back and forth. Id. at 41. CHOP doctors also did a blood workup to evaluate the cause of the bleeding and to check for rare bleedings disorders; the workup was negative. Id. at 38-40. CHOP experts concluded that Child's injuries were non-accidental trauma, indicative of child abuse.10 Id. at 42. CYS’ investigation report, deemed "indicated," identified Child as a victim of child abuse based upon medical evidence, and Parents as the "alleged perpetrators/responsible person[s]." CYS Investigation Report, 8/7/21, at 2. Accordingly, Children were discharged to maternal aunt's care with a safety plan in place.
On August 21, 2019, a follow-up skeletal survey revealed that Child's twin, Ly. -Ro. W., had a healing posterior fracture to her sixth rib on the left side.11 Id. at 45, 50. This injury was similarly unexplained12 and "highly concerning for non-accidental trauma or physical abuse." Trial Court Opinion, 4/2/21, at 6; see also N.T. Dependency/Abuse Hearing, 9/23/20, at 48, 58; id. , 1/27/21, at 139-40. Doctor Bennett testified that posterior rib fractures are rarely accidental and are highly specific for abuse; she also indicated that CHOP doctors had ruled out any metabolic bone conditions as the reason for this particular fracture. Id. , 9/23/20, at 50, 54-55. Finally, Doctor Bennett testified that there are often no external signs of trauma (i.e., bruising or swelling) with rib fractures. Id.
An August 21, 2019 repeat skeletal survey for Child revealed a second fracture—this time to the left femur—that was healing. Id. at 45; id. , 1/27/21, at 132.13 Parents again denied any knowledge of how these injuries occurred to Children and also denied any history of drug or alcohol use or any mental health concerns. Id. at 185. CYS prepared another report, dated August 21, 2019, listing Ly.-Ro. W. as a victim of child abuse and Parents as the abusers; the information in the report listed Parents as the alleged "perpetrators/responsible persons."14 The report was deemed "indicated." The Community Umbrella Agency (CUA) gave Parents the following objectives: parenting classes, one-hour supervised visits15 with Children at CUA, and weekly meetings with a CUA worker. Id. at 183-84. Parents consistently attended supervised visits with Children and completed parenting classes. Children remained in kinship care.
On September 9, 2019, DHS filed dependency petitions for Children alleging that it "has determined that there is [a] sufficient basis to find that aggravating circumstances exist [in the matter] pursuant to 42 Pa.C.S. § 6302 (aggravating circumstances (2))," where Children "have been [ ] victim[s] of physical abuse resulting in serious bodily injury by [Parents]." DHS Dependency Petitions, 9/9/19, at ¶¶ 5(l)-(m). An adjudicatory hearing was scheduled for September 18, 2014; when Parents contested the hearing, the hearing was deferred. On September 23, 2020, the court held the first of two bifurcated adjudicatory/child abuse hearings. At the first hearing, Dr. Bennett, Dr. Marvin Miller, Greg Williams, Dr. Susan Nagal-Gootnick (Dr. Gootnick),16 Mother, and Father testified.
Doctor Bennett, a CHOP attending physician in child abuse pediatrics who was one of Child's consulting physicians in the CHOP emergency department on August 6th, testified as DHS's expert witness. Doctor Miller, a pediatrician at Dayton Children's Hospital, testified as an expert on behalf of Mother.17 However, the trial court ultimately struck Dr. Miller's testimony as inadmissible in response to DHS's Frye18 motion, concluding that Dr. Miller's theory of Temporary Brittle Bone Disease (TBBD) (also known as metabolic bone disease of infancy (MBDI)), which he proposed was the mechanism of injury to Children, is a legitimately disputed theory that is not generally accepted in the medical community. Greg Williams, Children's assigned CUA case manager, who testified on behalf of DHS with regard to Children's placement and safety, noted that Children are thriving in kinship care with a family friend. N.T. Dependency/Abuse Hearing, 9/23/20, at 339. Doctor Gootnick, a board-certified radiologist and expert in pediatric radiology, testified for Mother. However, the trial court ultimately struck Dr. Gootnick's testimony, exhibits, and April 15, 2020 expert report. The court concluded that Dr. Gootnick's expert report was modified without her knowledge and, thus, it "goes to the very heart of her credibility and the very heart of the credibility of the documents offered to this [c]ourt." Trial Court Opinion, 4/22/21, at 31.
On October 23, 2020, mid-trial, and at the direction of the trial judge at the September 23rd hearing, DHS filed a motion to exclude Drs. Miller's and Gootnick's expert testimony based on Frye . In its motion, DHS argued that Dr. Miller failed to opine, to a reasonable degree of medical certainty, as is required under Pennsylvania law. See Frye Motion, 10/23/20, at 7; see also Pa.R.E. 70219 (). DHS also contended that Dr. Miller's theory of MBDI has been rejected by numerous courts, that too much of an analytical gap existed between his data and medical conclusions, that MBDI is not generally accepted in the medical community and...
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