In re L.V.

• Decision Date: 03 May 2019
• Docket Number: No. 1390 EDA 2018,No. 1392 EDA 2018,1390 EDA 2018,1392 EDA 2018
• Parties: In the INTEREST OF: L.V., a Minor Appeal of: J.H., Mother In the Interest of: L.V-H., a Minor Appeal of: J.H., Mother
• Court: Pennsylvania Superior Court

209 A.3d 399

In the INTEREST OF: L.V., a Minor

Appeal of: J.H., Mother

In the Interest of: L.V-H., a Minor

Appeal of: J.H., Mother

No. 1390 EDA 2018

No. 1392 EDA 2018

Superior Court of Pennsylvania.

Argued March 13, 2019

Filed May 3, 2019

Mark D. Freeman, Media, for appellant.

Patricia A. Korey, Public Defender, Philadelphia, for appellees.

BEFORE: LAZARUS, J., OLSON, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, J.H. ("Mother"), files these consolidated appeals from the orders entered April 16, 2018 in the Philadelphia County Court of Common Pleas, adjudicating dependent her son, L.V., born in August 2016, and daughter, L.V.-H., born in January 2015 (collectively, the "Children"), as well as finding L.V. was abused, that aggravated circumstances exist, and that no efforts need to be made toward reunification. Mother also challenges the trial court's partial denial of Mother's motion for permission to take L.V. for medical examination (April 5, 2017), its denial of Mother's motion for reconsideration of that order (May 17, 2017), and its denial of Mother's motion for recusal (December 15, 2017).¹ After careful review, we affirm.

The trial court summarized the relevant factual history as follows:

FINDINGS OF FACT

On October 11, 2016, the Department of Human Services ("DHS") received a Child Protective Services ("CPS") report alleging that two (2) month old [c]hild[,] L.V. was admitted to the Children's Hospital of Philadelphia ("CHOP") on October 10, 2016 with multiple fractures. In total[,] twenty[-]six (26) fractures were eventually discovered.... Medical staff at CHOP determined that [ ] L.V.'s injuries were highly indicative of child abuse. These fractures were also in various stages of healing. CHOP admitted [ ] L.V. to the Trauma Unit where [ ] L.V. remained for several days. Mother and Father were unable to explain the causes of [ ] L.V.'s fractures. Mother and Father denied that the [c]hild had been dropped or fallen or left in the care of someone other than Mother or Father.

***

On October 13, 2016[,] [DHS] obtained an Order of Protective Custody for [ ] L.V. and [ ] L.V.H.^[2]... On October 21, 2016, DHS filed the underlying Petition for Dependency and sought a finding of aggravated circumstances and child abuse against Mother and Father[.]

Trial Court Opinion ("T.C.O."), 10/5/18, at 4-5.

On December 5, 2016, the CPS report concluded abuse was determined to be indicated with Mother and Father as perpetrators. N.T., 8/23/17, at 207-208. DHS investigative worker Ashley Wingate testified that the report was indicated based on "CHOP's findings that the injuries were extensive and indicative of inflicted injury. The parents couldn't offer any explanation for the injuries or how they occurred. Also, no one else was caretaker who could have caused the multiple injuries, including new and healing fractures." Id. at 219-20.

The trial court conducted adjudicatory hearings on August 23, 2017, September 11, 2017, December 15, 2017, March 27, 2018, and April 16, 2018. The Children were represented by Beth Kahn, Esquire, and Jalaine Stokes, Esquire, of the Defenders' Association Child Advocate Unit. Mother and Father were present and represented by counsel throughout.

Mother and Father testified on their own behalf as to the events that led to L.V.'s hospitalization on October 10, 2016. Mother noticed L.V.'s shoulder swelling on Thursday, October 6, 2016. Mother called the pediatrician on Friday, October 7, 2016 and was advised there were no doctors available to see L.V. While the doctor's office directed Mother to take L.V. to the emergency room, Mother decided to wait until L.V.'s scheduled pediatric appointment on Monday, October 10, 2016.

Mother testified that she felt the swelling in L.V.'s shoulder was not a serious injury as L.V. was not crying. That weekend, Mother felt L.V. was doing fine and sleeping well, but observed that he had reduced his level of feeding. On Monday, before taking L.V. to his appointment, Mother noticed swelling in L.V.'s leg, but asserted that she never saw any bruises. At this visit, L.V.'s pediatrician directed Mother to take L.V. to the emergency room, where CHOP personnel discovered that L.V. had twenty-six fractures.³

Mother claimed she had no reason to believe Father harmed L.V.; she indicated she always was with the baby as she was on maternity leave and L.V. was left alone with Father "maybe three, five times." N.T., 3/27/18, at 153. After the Children were removed from her home, Mother admitted that she and Father could not "handle ... the fact that our kids were taken away," and shared that Parents' marriage experienced a lot of conflict. Id. at 159. Mother conceded that she filed for a Protection from Abuse (PFA) order against Father, claiming he threatened to slice her throat. Id. at 159. However, Mother testified that she had no reason to believe Father injured L.V.

Father gave similar testimony describing the days before L.V.'s injuries were discovered in the CHOP emergency room. Father admitted seeing L.V.'s shoulder was swollen on Thursday, October 6, 2016, but corroborated Mother's testimony that the pediatrician was not available until the following Monday morning. Father claimed that he did not see that L.V.'s leg was swollen as the baby always had clothes on; Father shared that both Mother and Father cared for him. Father indicated that "at no time whatsoever" would Mother have caused L.V.'s injuries. N.T., 3/27/18, at 180. When asked about Mother's claim that he threatened to slice her throat, Father asserted that he did not use those words. Id. at 181.

The parties offered competing medical expert testimony to attempt to explain the cause of L.V.'s injuries. DHS first presented the testimony of Dr. Cindy Christian, a CHOP pediatrician on the Suspected Child Abuse and Neglect ("SCAN") team or child protection team, whom the trial court qualified as an expert in pediatrics and pediatric child abuse. Dr. Christian reported L.V. presented at the CHOP emergency room in a lot of pain and was not moving his left leg. L.V. was admitted to the Trauma Service as he exhibited twenty-six fractures and had to be treated gently. N.T., 8/23/17, at 66. L.V. had both new and healing fractures of his ribs, metatarsal (foot), tibia (shin bone), femur (thigh bone), humerus (arm), and acromion (shoulder blade). Id. at 49-50, 54-59, 66. Dr. Christian stated,

Many of the fractures that we saw were fractures that are more specific or not seen very frequently in children who have accidental fractures; more commonly seen in children who have inflicted fractures.

And I think what was remarkable about [L.V.] was how many fractures he had when he came into the hospital.

Id. at 64. She noted that shoulder blade and rib fractures are uncommon in accidental trauma. She noted L.V. had some metaphyseal fractures located at "the end or the growing portion of the bone," which were uncommon. Id. at 55, 65. Moreover, Dr. Christian reiterated that she never saw the amount of fractures exhibited instantly as a result of accidental trauma. Id. at 66.

Due to the high number of fractures, Dr. Christian found it necessary to rule out any underlying disease processes and obtained a consult for metabolic bone disease. Id. at 70-71. After further testing, Dr. Christian was able to rule out osteogenesis imperfecta (brittle bone disease ), vitamin D deficiency, and rickets disease.⁴

Id. at 71-75; see also DHS Exhibit 6. When asked to evaluate the opinion of Mother's expert, Dr. Michael Holick, who believes L.V. has a metabolic bone disease called Ehlers-Danlos syndrome, Dr. Christian asserted that Ehlers-Danlos syndrome is "not a disease that's known to cause multiple fractures in infants, and not a disease that's associated with fractures in infants." N.T., 8/23/17, at 85.

Moreover, after Dr. Christian observed abnormal healing of L.V.'s bones on a second skeletal survey, she obtained a third survey, which revealed no new fractures and normal healing of existing fractures.⁵ She explained,

At the time of [L.V.'s] follow-up skeletal survey, which was two or three weeks after he was hospitalized, when we reviewed the x-rays and he had some unusual kind of findings on -- as his bones were healing, in addition to doing genetic testing, I thought that it might be useful to get yet a third set of skeletal survey because -- which I don't normally do.

We always would get a skeletal survey when babies are initially hospitalized. We often get a follow-up a few weeks after hospitalization.

But I thought – I knew that [L.V.] was in a different home environment and that, if I waited a few more weeks and got yet a third skeletal survey and I saw additional new fractures that I hadn't been seeing on the first two skeletal surveys, it would indicate to me that there was something inherently wrong with his bones that maybe we were missing with our osteogenesis imperfecta studies.

I don't know what that was, but I felt like it was -- it would tell me that there were -- that there was more testing that we should think about or -- or do.

And, so, I asked for [L.V.] to have a third skeletal survey. And, again, Your Honor, I don't normally do this. And he did have the third skeletal survey, and there were no new fractures.

So -- and all of the other fractures that he already had were healing very nicely. And, so, at that time, I didn't think that additional testing for genetic diseases was indicated at that time because, as soon as he came into the hospital, he had no further fractures.

And in the first two months of life, he had multiple, multiple fractures. So, if he had a genetic disease that was so terrible that it broke multiple bones in the first two months of life, it didn't seem consistent with then it suddenly -- there were no more fractures after that.

Id. at 79-80. She found that the fact that L.V.'s "third skeletal survey [ ] didn't show ongoing fragility of his bones suggested that he didn't have a genetic disease that caused all...