In re M.R., 1400 EDA 2020

• Decision Date: 01 March 2021
• Docket Number: No. 1400 EDA 2020, No. 1402 EDA 2020, No. 1403 EDA 2020, No. 1401 EDA 2020,1400 EDA 2020
• Citation: 247 A.3d 1113
• Parties: In the INTEREST OF: M.R., a Minor Appeal of: Philadelphia Department of Human Services ("DHS") In the Interest of: M.R., a Minor Appeal of: M.R., Child In the Interest of: J.R., a Minor Appeal of: Philadelphia Department of Human Services ("DHS") In the Interest of: J.R., a Minor Appeal of: J.R., Child
• Court: Pennsylvania Superior Court

247 A.3d 1113

In the INTEREST OF: M.R., a Minor

Appeal of: Philadelphia Department of Human Services ("DHS")

In the Interest of: M.R., a Minor

Appeal of: M.R., Child

In the Interest of: J.R., a Minor

Appeal of: Philadelphia Department of Human Services ("DHS")

In the Interest of: J.R., a Minor

Appeal of: J.R., Child

No. 1400 EDA 2020

No. 1401 EDA 2020

No. 1402 EDA 2020

No. 1403 EDA 2020

Superior Court of Pennsylvania.

Argued January 12, 2021

Filed: March 1, 2021

Jennifer MacNaughton, Philadelphia, for appellant.

Christa Frank High, Havertown, for appellee.

Brandi L. McLaughlin, Philadelphia, for B.R., participating party.

Daniel Conner, Philadelphia, for R.R., participating party.

BEFORE: BENDER, P.J.E., OLSON, J., and KING, J.

OPINION BY BENDER, P.J.E.:

The Philadelphia Department of Human Services ("DHS") appeals from the June 26, 2020 orders adjudicating dependent M.R., a child, and his twin sister, J.R., a child (collectively, "Children"), but not finding child abuse as to B.R. ("Mother") and R.R. ("Father") (collectively, "Parents"). Children's guardians ad litem ("GAL") also appeal from those same orders. At issue in these appeals is whether the trial court abused its discretion by admitting the testimony of Parents’ expert witness, Marvin Miller, M.D., who opined that metabolic bone disease

of infancy ("MBDI") caused Children's multiple fractures, instead of abuse.¹ Alternatively, DHS and GAL contend that, even if Dr. Miller's testimony was admissible, the trial court abused its discretion in declining to find child abuse, given the overwhelming medical evidence presented at the adjudicatory hearing that Children's injuries were caused by abuse. After careful review, we conclude that the trial court improperly admitted Dr. Miller's testimony and, therefore, we reverse its orders refusing to make a finding of child abuse against Parents in each child's case.

The trial court summarized the procedural history and facts of this matter as follows:

Children were born on March 7, 2019. [DHS] first became aware of ... Children and their family ... when it received a [Child Protective Services ("CPS")] report indicating that M.R. was diagnosed with multiple unexplained fractures. Subsequently, an additional CPS report was received when J.R. was subsequently diagnosed with several unexplained fractures. As a result of the CPS reports, an [Order of Protective Custody ("OPC")] was obtained for both [C]hildren. A shelter care hearing was held on June 7, 2019[,] at which time ... Children were placed into kinship care. This [c]ourt subsequently held a bifurcated adjudicatory and child abuse hearing on February 7, 2020[,] and June 26, 2020.

At the February 7, 2020 adjudicatory hearing, Dr. Maria Henry testified that she is currently employed at [Children's Hospital of Philadelphia ("CHOP")] and serves as an attending physician on the [Suspected Child Abuse and Neglect ("SCAN")] team, which evaluates children for child abuse. All counsel stipulated to Dr. Henry's expertise in general pediatrics and pediatric child abuse. Dr. Henry indicated that [the] Child Protection Team was consulted on June 3, 2019[,] due to concerns of non-accidental trauma as the cause of ... Children's injuries. She stated that M.R. was initially admitted to the hospital on June 2, 2019[,] with scrotal swelling. While at the hospital, he was diagnosed [with] a fractured forearm

and multiple rib fractures after doctors observed "fussiness[.]" As a result of [M.R.’s] multiple fractures, the genetics team was consulted to determine whether there was a genetic cause for the injuries. Dr. Henry testified that the genetics team found no underlying genetic conditions that would cause the injuries after performing a skeletal survey. Additionally, Dr. Henry stated that the endocrinologist team was also consulted to determine whether an underlying bone disorder was present. After examining M.R.’s [v]itamin D levels and [x]-rays, the team found no "rickets" or other underlying bone conditions.^[2

^] Additionally, she stated that the reported fussiness was likely "paradoxical fussiness[,"] which can be indicative of a child's pain due to an injury such as rib fractures.[ ] Dr. Henry further testified that as ... Children are twins, J.R. was also examined for injuries. As a result, J.R. was diagnosed

with multiple rib fractures

. Dr. Henry testified that she underwent the same testing as M.R.[,] with similar results of no underlying genetic or bone disorders. Nemours[ Alfred I. DuPont] Hospital [for Children ("Nemours")] also performed a skeletal survey after [P]arents sought a second medical opinion, which yielded the same results as the CHOP skeletal survey.

Dr. Henry also took a family history during her investigation. She stated that Mother confirmed ... Children were unable to roll. Additionally, she testified that Mother stated M.R. was "fussier than normal" the day prior to his hospitalization. She also reported that [P]arents denied any recent accidental trauma to ... Children. Additionally, Dr. Henry noted that the family history did not contain any known bone diseases. Dr. Henry also stated that ... [P]arents had ... large family support, with numerous family members occasionally watching ... Children.

Dr. Henry concluded that the injuries to Children were the result of non-accidental trauma. Because all of the medical testing performed at CHOP determined ... Children had no underlying genetic or bone disorders, she indicated that the injuries were caused by trauma. With respect to the nature of the injuries, Dr. Henry stated the amount of force necessary to cause the rib fractures is rarely seen in accidental injuries. As a result, Dr. Henry found that ... Children's fractures are most consistent with abuse to a degree of medical certainty.

Dr. Cara Skraban also testified that she is currently employed at CHOP and serves as an attending physician in clinical genetics. All counsel stipulated to Dr. Skraban's expertise in general pediatrics and clinical genetics. Dr. Skraban testified that she performed a consultation for ... Children when they were hospitalized in June 2019. As a part of the consultation, she examined ... Children's radiographs and performed genetic testing. She testified that the radiographs appeared to be normal, which indicated no physical signs of an underlying genetic condition or bone demineralization. Additionally, Dr. Skraban testified that ... Children's genetic testing resulted in no clinically significant markers for osteogenesis imperfecta.^[3

^] Dr. Skraban found that ... Children did not have an underlying bone disease, osteogenesis imperfecta [,] or other medical condition that would have caused their injuries. Dr. Skraban further testified regarding her review of the report generated by the clinical geneticist at Nemours who was consulted for ... Children, Dr. [Michael] Bober. She stated that Dr. Bober confirmed CHOP's findings after the subsequent skeletal survey and additional testing.

Anna Schuettge also testified that she is currently employed as a Nurse Practitioner at Karabots [Pediatric Care Center], a primary care practice connected with CHOP. Ms. Schuettge testified that

she was part of ... Children's treating group of doctors prior to June 2, 2019.^[4] Ms. Schuettge stated that she administered an Edinburg test to Mother on May 6, 2019, in order to screen for signs of depression. She indicated that Mother's score was 12, which resulted in suggestion of a safety plan and therapy for Mother. She also stated that Mother had reported a history of depression. Additionally, Ms. Schuett[ge] testified that she did not observe any physical injuries on ... Children during their medical appointments.

Jennie Niamonitos testified that she was the DHS investigative social worker assigned to Children's case. She stated that ... [P]arents would not speak with her regarding how the injuries occurred. Additionally, she further testified that Parents would not provide any possible kinship resources.

Mother was also called to testify. She stated that she was the primary caretaker of ... [C]hildren, but family members frequently visited. Mother acknowledged seeking a second opinion with Nemours and a third opinion with Dr. Miller. She indicated that she sent Dr. Miller ... Children's medical files.

Prior to the June 26, 2020 adjudicatory hearing, a motion was made by DHS and [GAL] to exclude the expert testimony of Dr. ... Miller. After considering the briefs submitted by the parties, this [c]ourt allowed [D]r. Miller to testify.

Dr. Miller testified that he is employed at Dayton[ ] Children's Hospital and serves as the Director of Medical Genetics. Additionally, he testified that he is a professor of pediatrics and OB/GYN at Wright State University Boonshoft School of Medicine. For the purposes of the adjudicatory hearing, Dr. Miller was certified as an expert in pediatric medical genetics[ and] bone health. Dr. Miller testified that he prepared a report for ... Children's case after being contacted by [P]arents. He testified that he reviewed ... Children's medical records, medical history, Mother's delivery and pregnancy history, and diagnostic imaging studies in writing his report. He concluded that ... [C]hildren had [MBDI], which was a plausible alternative explanation for the fractures. He explained that he believed MBDI occurs primarily in the first three months after birth because the fetus could not move well in the womb. He testified that[,] during this time, the baby is more susceptible to fractures because of his [or her] weaker bones. After the baby turns three months of age, the bones increase in strength. Dr. Miller testified that this disorder was part of a study published in [t]he Journal of Pediatric Endocrinology and Metabolism, a peer[-]reviewed journal.^[5]

In forming this conclusion, Dr. Miller testified that there is no specific genetic testing for MBDI. Instead, he stated that diagnosis depends on several other tests and tools

...