In the Interest of: M.M.-A., a Minor

J-S68013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.M.-A., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: LACKAWANNA COUNTY : CHILDREN AND YOUTH : : : : No. 928 MDA 2017

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.: FILED DECEMBER 01, 2017

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,1 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. ____________________________________________

1 It was ultimately determined that Child had approximately 38 rib fractures. ____________________________________ * Retired Senior Judge assigned to the Superior Court.

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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[2] standard, and by accepting Dr.

____________________________________________

2 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).

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Gootnick as a pediatric radiology expert despite a lack of qualifications or training in said specialty[?]

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[?]

Brief of Appellant, at 8.

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,

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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

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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:

(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.

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).

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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

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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.

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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

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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

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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:

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Q: In your treatment of [Child], was she ever treated as a baby that was one labelled as failure [sic] to thrive?

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.

N.T. Hearing, 3/23/17, at 16.

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.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/1/2017

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Circulat

: IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY

IN RE: M. M. -A. JUVENILE DIVISION

CP-:35- DP -154 -2016 MUNLEY, JULIA, J. July 7, 2017

RULE 1925(a) OPINION IN SUPPORT OF ORDER DATED MA'-Y 0, zwi7 . > The Lackawanna County Office of Youth and Family Services ("0.0AfileTa Pg. seeking a finding of dependency of Minor Child.M. M. -A. (D.O.B. 081 /7614f-Iased one

allegations of physical abuse by Mother V A ("Mother") and Fattrei:h. ! . ("Father") and failure by Minor Child's parents to provide proper parental care or control. -

OYFS's Petition also sought a finding of child abuse against Mother and Fathtr pursuant to the Child Protective Services Law, 23 Pa.C.S.A. § 6301 et ceq, ("CPSL")

A sheltercare hearing was held on November 14, 2016. The adjudication hearing was held on March 23, 24; April 11; and May 3, 4, 2017.

Having weighed and considered the relevant evidence and testimony in this matter, this Court entered an Order dated May 10, 2017 and also issued specific Findings of Fact and Conclusions of Law. Sec Pa. Rule S. C. P. 1409 mt. (citing In re LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976); In re Frank W.D., Jr., 315 Pa. Super. 510, 462 .A.2d 708 (1983); In re Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976)). On May 10,2017, this Court granted OYFS's petition in part, finding that Minor Child is a dependent child as defined by 42 Pa. C.S. § 6302 based on evidence that Minor Child sustained as many as thirty-eight rib fractures while in Mother and Father's care and control, Prior to the discovery of the rib fractures, Minor Child was also diagnosed as failing to thrive and Mother and Father missed at least two appointments with Minor Child's pediatrician after a failure to thrive diagnosis was made. This Court denied

Page 1 of 16 OYES 's petition in regard to a finding of child abuse under the CPSL for the reasons set forth in the Findings of Fact and Conclusions of Law and discussed below.

On June 7, 2017, OYFS filed a Notice of Appeal and a Concise Statement of Errors. Although the reasons for this Court's May 10, 2017 Order appear of record in the aforementioned Findings of Fact and Conclusions of Law, this Court, having the benefit of the transcripts from the adjudication hearing, provides this brief Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). The matters raised by OYFS on appeal are listed below and addressed in turn.

The trial judge erred by and/or abused her discretion by not determining credibility of witnesses, including expert witnesses and resolving conflicts in the testimony.

As trier of fact, this Court is the sole judge of the credibility of witnesses. See In re Adoption of J.J. 511 Pa. 590, 594, 515 A.2d 883, 886 (1986). Conflicts in testimony are to be resolved by this Court. Id.

In considering this matter, this Court heard witness testimony from several fact witnesses and medical expert witnesses. As detailed in the Findings of Fact and Conclusions of Law, this Court fully considered all of the relevant evidence and testimony and closely scrutinized the medical experts' testimony and conclusions in light of the other facts in this case.

An evaluation of the credibility of witnesses can be found in the Court's Findings of Fact and Conclusions of Law. This Court found all witnesses to be at least partially credible and noted where witness testimony was less reliable or less weighty to the Court in light of the other facts that emerged over the course of the hearing. See e.g. 1173, 88, 91-102 (discussing the facts that weakened the credibility of OYFS expert Dr. Kent Hymel and eroded his conclusion that child abuse occurred).

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Resolution of the conflicts in testimony can also be found in the Court's Findings of E.trt

high number of fractures to and Conclusions of Law. For example, Dr. Hymel relied on the 91-92. Defense expert support his conclusion that there was child abuse. 03/24/2017 Trans. at to support his conclusion that Dr. Charles Hyman also relied on the high number of fractures Trans. at 56-59. Where Minor Child had a medical disorder causing bone fragility. 05/03/2017 Court resolved conflicting the Medical experts disagreed regarding a finding of child abuse, this to meet OYFS 's testimony when it found that the testimony of Dr. Hymel was insufficient and convincing evidence when burden of proving child abuse against Mother and Father by clear Dr Hyman, and Dr. Susan contrasted with the testimony of defense experts Dr. Michael Holick,

Gootnick. tl. 04/10/2017 Trans. at 74-75. According to Dr. Hyman, Minor Child had a constellation of factors that caused rib fractures, tom frenulum, and failur&to thrive that were not abuse. 05/03/2017 Trans. at 55-61. Dr Hyman opined that Minor Child had some type of bone fragility and that the high number of healing or occult rib fractures supported his opinion. Id. at 56-59. Dr. Hyman also indicated that non-abusive reasons for Minor Child's injuries were either ignored or not objectively considered by Minor Child's treating physicians. Id. at 56, 68, 105-

106. Dr. Gootnick testified that she observed radiographic evidence of healing rickets on Minor

Child's X-Ray films, called a rachitic rosary. 05/04/2017 Trans. at 18. She testified that the rachific rosary is a pathognomonic sign, a characteristic unique to rickets. Id. at 22. Dr. Gootnick opined within a reasonable degree of medical certainty that Minor Child had abnormal

bones based on her X-Ray findings and that there was no radiological evidence of non -accidental observed on trauma. Id. at 18-21, 27. Dr. Gootnick also suggested that some of the abnormalities

X-Ray as healing fractures were actually signs of rickets. Id. at 19-20.

Furthermore, two of the defense medical experts in this matter testified that considerable bone density loss had to occur before it would be observable on an X -Ray. 04/11/2017 Trans. at 57 (Natick: 30-50% loss of bone density); 05/03/2017 Trans. at 70-71 (Hyman 20%-40% loss of bone density). Dr. Hymel, on behalf of OYFS, could not completely rule out that Minor Child had reduced bone density, See 03/24/2017 Trans. at 135-137, 175-177.

There was other evidence that this Court weighed before finding that Mother and Father a risk of did not intentionally, knowingly, or recklessly cause Minor Child's injuries or create to medical injury or harm to Minor Child. Minor Child was taken by Mother and Father

providers at least twelve times in three months, including her pediatrician and to several

at 40. specialists outside the Scranton area. 03/23/2017 Trans. at 44-45; 05/03/2017 Trans.

Taylor Hospital by Mother and Father where the rib fractures Minor Child was taken to Mcises 2016. Id. at 38-39, 53-54. Prior to November 12, 2016, were discovered on November 12, specialists did not make any reports of child abuse for Minor Child's pediatrician and heating even though these physicians were mandated reporters. Id. at torn frenulum or failure to thrive Minor Child was not 119, 245. Additionally, OYFS's caseworker Lisa Herie testified that 110, referral at Moses when Herie responded to the initial in any discomfort and was not crying Minor Child was the time Herie responded to the hospital, Taylor Hospital. Id. at 54-56. At did not present with any Child's one-year-old sister I.M.-A. restrained in a car seat. Id. Minor Id. at 63. injury when Minor Child M.M.-A.'s rib fractures were discovered. signs of physical it was not consideration of all the evidence and testimony presented in this case, After abuse. Mother and Father committed child clear and convincing to this Court that by her discretion in reviewing the medical evidence The trial judge erred and/or abused in front Doctors Holick, Hyman, and Gootnick admitting novel medical testimony radiology violation of the Frye standard and by accepting De: Gootnick as a pediatric in said specialty. expert despite a lack of training was of Dr. Holick, Dr. Hyman, and Dr. Gootnick In this matter, the expert testimony Rules of Evidence 702-705. properly admitted pursuant to Pennsylvania by knowledge, skill, witness who is qualified as an expert Rule 702(c) provides that "[a] or otherwise if the may testify in the form of an opinion experience, training, or education accepted in the relevant field." The admission of expert expert's methodology is generally

is an evidentiary matter for the trial court's discretion. Grady v. Frito-Lay scientific testimony a wide latitude for the 546, 559, 839 A.2d 1038, 1046 (2003). Rule 702 provides Inc. 576 Pa. 600-01 (Pa. Super. 2006). of expert testimony. See Long v. Mejia,896 A.2d 596, admission the admission of the medical testimony of Dr. In this appeal, OYES now challenges States 293 F. 1013 (D.C. Cir. Dr. Hyman, and Dr. Gootnick pursuant to Frye v. United Holick,

Page 6 of 16 1923). On a preliminary note, OYFS did not move to exclude expert testimony prior to the adjudication hearing. During the hearing, OYFS did not raise the issue of the admissibility of testimony of any of the defense medical expert witnesses on the grounds of an issue with the experts' methods. Although there were no objections by OYFS in regard to the defense experts' methods during the hearing, this Court considered the expert opinions and admitted Mother and Father's expert witness testimony pursuant to the above-cited Pennsylvania Rules of Evidence.

Under Frye the proponent of novel scientific evidence bears the burden of establishing that the methodology used by the expert has gained general acceptance in the relevant field, but not "that the scientific community has also generally accepted the expert's conclusion." Grady 576 Pa. at 558, 839 A.2d at 1045. As an exclusionary rule of evidence, Frye "must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth." Trach v. Fellin 817 A.2d 1102, 1104- (Pa. Super. 2003) (en bane), app. denied, 577 Pa. 725, 847 A.2d 1288 (2004).

"[Ain expert witness need not cite to medical literature or medical treatises to support his opinion." Catlin v Hamburg, 56 A.3d 914, 921 (Pa. Super. 2012)(citing Joyce v. Blvd. Phys. Therapy & Rehab. Ctr., P.C. 694 A.2d 648, 656 (Pa.Super. 1997); Smith v. Grab 705 A.2d 894, 900 (Pa. Super. 1997)). However, at a minimum, "the proffered expert testimony must point to, rely on or cite some scientific authority-whether facts, empirical studies, or the expert's own research-that the expert has applied to the facts at hand and which supports the expert's ultimate conclusion" Snizavich v. Rohm & Haas Co. 83 A.3d 191, 197 (Pa. Super. 2013). Expert testimony as to a causal relationship may be admissible, even if based solely on the experts review of medical records and his experience and expertise in the applicable medical field, when the expert can point to some scientific authority that supports the causal connection. Id. Medical

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experiences in their fields of expertise in witnesses may rely upon their individual professional v. Moses Taylor Hospital, No. 11 -CV - formulating opinions regarding medical matters. Page

1402, 2016 WL 2606520 *5 (Lacka. C.C.P.)(Nealon, J.)(citations omitted).

a. Dr, Holick

F. Holick, Ph.D., M.D., a Mother and Father presented the testimony of Michael chief of endocrinology, and director of the professor at Boston University Medical Center, prior Program. 04/11/2017 Trans. at 23-25; Exh. Ehlers-Danlos Syndrome ("EDS") Clinical Research

4. Dr. Holick testified that he is the director of the bone health care clinic at Boston University

include Vitamin D, metabolic bone Medical Center. Id. at 24. Dr. Holick's areas of research over 500 times in these fields. Id. Dr. disease, and collagen disorders and he has been published nutrition, metabolism and collagen Holick was thus admitted as an expert in endocrinology; Id. at 31, 41. disorders; metabolic bone disease; and vitamin D deficiency. Dr. Holick diagnosed Mother and Father Within a reasonable degree of medical certainty physical examination of with EDS hype ability type 3, based on a review of factors after his

used to diagnose Mother and Father with both parents. Id. at 44 49. The factors Dr. Holick findings and Mother and Father's EDS hyperrnobility type 3 were based on Dr. Holick's clinical diagnosis called a Beighton score to diagnose self-reporting. Id. Dr. Holick used a method of 3. Id. at 45-48. At no time did OYES raise any Mother and Father with EDS hyperraobility type Mother and Father with EDS. objections to the use of Beighton scoring to diagnose

Dr. Holick also opined within a reasonable degree of medical certainty that because

that Minor Child has EDS, a 75% chance. Id. at Mother and Father have EDS, it was very likely simple mathematics because EDS is an 51-54. Dr. Holick reached that conclusion using also testified that there is no genetic test to autosomal dominant genetic disorder. Id. Dr. Holick

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type 3. Id. at 69. Given Dr. Holick's determine whether a person has EDS hypermobility methods, this Court admitted and testimony and no challenge from OYES as to Dr. Holick's in the medical and scientific community. considered Dr. Holick's methods as generally accepted had been properly raised and Even if an objection to Dr. Holick's methodology did not determine that Minor Child suffered from considered at the hearing, this Court ultimately multiple, bilateral rib fractures. Rather, this Court EDS or that EDS was the specific cause of her that non-abusive explanations for Minor Child's rib found credible from Dr. Holick's testimony out in this matter by the treating physician, Dr. Hymel fractures existed and could not be ruled

b. Dr Hyman of Charles Hyman, M D, who was Mother and Father also presented the testimony

qualified by this Court as an expert in the field of child abuse. At the hearing, OYES and the

Guardian ad Litem objected regarding Dr - Hyman's qualifications only specifically, his lack of

and that he had been precluded from testifying about board certification in child abuse pediatrics Dr. Hyman was not board-certified in child bones in past cases. 05/03/17 Trans. at 27-28. provide answers on the board-certification test that abuse because, as he stated, he would have to OYES and the Guardian ad Litem's objections were he did not believe were accurate. Id. at 26. as a child abuse expert based on his education, overruled and Dr. Hyman was admitted

experience, research, and extensive review of the medical records. Id. Dr. Hyman's methodologies. "Whether There was no objection at the hearing regarding

a witness is qualified to render opinions and whether his testimony passes the Frye test are two

separately by the parties." Grady 576 Pa. at distinct inquiries that must be raised and developed Commw. v. Arroyo 555 Pa. 125, 723 A.2d 162, 558-59, 839 A.2d at 1045-46 (2003) (citing

170 (1999)).

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and has testified that he is a board-certified pediatrician As to qualifications, Dr. Hyman 8-9. Early in his medical medicine for 50 years. 05/03117 Trans. at been involved in pediatric in newborn intensive care at Pittsburgh a two-year fellowship career, Dr. Hyman completed Hyman developed a Id. at 5. After moving to Southern California, Dr. Children's Hospital. five Hospital in 1976 and chaired that department for Linda Children's child abuse team at Loma a member of the hospital faculty. to maintaining a private practice and being years in addition in the child protection team at St. Bernadines Hospital, was involved Id. Thereafter, Dr. Hymel 5, 12-13, 18. Dr. Hymel with Lorna Linda Children's Hospital. Id. at while still affiliated

until about 2000. Id. at 6. remained in private practice years of his professional work on research and Dr. Hyman has concentrated the last thirty regarding child abuse is the professional the predominant views studies that are contrary to and the the views held by the American Academy of Pediatrics medical community, including advised he is a member of a loose - Id. at 19, 21-22. Dr. Hymel Society of Pediatric Radiology. injury." Id. at "interested in sorting out the debate on infant knit group of medical professionals that disputes that there is another segment of the medical community 7. Dr. Hyman explained Dr. called "the child abuse community." Id. at 22-23. Dr. Hyman the conclusions of what areas of trauma, are peer -reviewed studies and literature in the Hyman testified that there positions held and bone science that challenges or refutes the genetics, endocrine, biomechanics, child and the Society of Pediatric Radiologists regarding of Pediatrics by the American Academy in approximately fifty-six As part of his work, Dr. Hyman has testified abuse. Id. at 21-22. Hyman general pediatrics and child abuse. Id. 12-13, 18. Dr trials since 2002 in the field of this matter. expert medical opinion regarding child abuse in an was thus qualified to render

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certainty, Dr. Hyman opined thatthe injuries to degree of medical Within a reasonable 05/03/17 Trans. at 55-61. In support of his the result of child abuse. Minor Child were not abuse and that there were non -abusive reasons for were no objective signs of opinion that there records and his experience injuries, Dr. Hyman cited his review of the medical Minor Child's is not novel. to other research and studies. Id. This approach along with citation by OYFS and the Guardian ad Litem during were challenged . Dr. Hyman's conclusions Child met ' cross-examination, Dr. Hyman agreed that Minor Under the adjudication hearing. by the American Academy of Pediatrics for suspicion of child abuse, seven of nine factors listed is no "gold standard" for a child abuse diagnosis. Id. at 79-84, there but testified that he believes conclusions are generally accepted, only that an not prove that an expert's 116. A party need Frye is not implicated are generally accepted. See Grady supra. Moreover, expert's methods expert testimony into the courtroom; rather, it applies only to proffered every time science comes was Pa. at 557, 839 A.3d at 1045. As indicated above, there Id., 576 involving novel science. not used in a methodology and Dr. Hyman's methods were nothing novel about Dr. Hyman's opinions were properly admitted. novel way. Thus, Dr. Hyman's

c. Dr. Gootnick radiologist. The qualifying that Dr. Gootnick was admitted as a pediatric OYFS objects witness has any reasonable to testify as an expert witness is whether the test for a witness Miller v. Brass Rail specialized knowledge on the subject Under investigation. pretension to may testify and 664 A.2d 525, 528 (1995). If she does, she Tavern, Inc., 541 Pa. 474, 480-81,

such testimony is for the trier of fact to determine. Id. the weight to be given to she graduated from the University of California, San As to Dr. Gootnick's qualifications, and residency in radiology. 05/04/2017 Medical School and completed an internship Francisco

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was a resident, no pediatric radiology fellowships when Dr. Gootnick Trans. at 4. There were her residency but she did undergo a three-month rotation during according to Dr. Gootnick, imaging. Id. at 5, 7-8. Dr. Gootnick has been board reviewed pediatric where she specifically certified in the field of Board of Radiology since 1977, but not board certified by the American radiology, Dr. Id. at 4-5, 10. Although not board certified in pediatric pediatric radiology. every has read and interpreted radiologic images of pediatrics patients Gootnick testified that she Id. at 5, 8-9. Of the pediatric images that she of her 42 year career. workday over the course she mostly reads the X -Rays of newborns. Id. at 14. Based testified that reviews, Dr.-Gootnick and extensive experience in reviewing radiological education, training, on Dr. Gootnick's expert in the field of and children, the Court permitted her to testify as an imaging of infants to do so. Id. at 16. Dr. Gootnick was clearly qualified pediatric radiology. pursuant to Frye. There was nothing novel about Dr. OYFS also challenges Dr. Gootnick based on her consisted of reviewing X-Rays and offering an opinion Gootnick's methods, which her qualifications. and her use of generally accepted experience. Given education, training, and was properly her expert medical opinions, Dr. Gootnick's testimony methods in reaching 702. admitted pursuant to Rule discretion by finding that the pediatrician Dr. abused her The trial fudge erred and/or (finding ofFact #167) which is not Burke had diagnosed the child' is failure to Indite test results showinggio the evidence; and further erred and disregarded D supported by had 01' (oSteogenesis imperfecta) and had normal Vitamin evidence that the child disorders testing and follow disorders testing, bone density levels, by ordering genetic the experts agree that in the Adjudication Order when any and all recommendations metabolic disease or Syndrome] has no test to identifi, it, and no EDS lEhlers-Danlos have been diagnosed by the treating physicians. genetic disorders of the child

a. Dr. Burke and the Failure to Thrive Diagnosis at of Christine Burke, M.D., Minor Child's pediatrician OYFS offered the testimony Minor Child from birth and Center as a fact witness. Dr. Burke treated Scranton Primary Health

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issues over her first three months of life prior to Child had several medical testified that Minor medical issue was a diagnosis of failure 03/23/2017 Trans. at 199-219. One OYFS involvement. diagnosis and treatment for failure to thrive as testified to the to thrive. Dr. Burke specifically

follows: ever treated Child M.M.-A.], was she Q. In your treatment of [Minor as failure to thrive? as a baby that was one labelled to distinguish because she was having so A. Yes, but it was difficult her slow mouth issues. I wasn't sure if that was contributing to many weight gain.

' Id. at 212. consulted with a pediatric hospitalist in the that she Additionally, Dr. Burke explained placement Child's Marks, regarding the failure to thrive, prior to Minor Geisinger system, Dr. that Minor Child was As of December 7, 2016, Dr. Burke testified 216, 278. with OYFS. Id. at in part on Dr. Burke's diagnosis of failure to thrive. Id. at 285. Based still carrying the to diagnosed as failing to thrive and Mother and Father's failure was testimony that Minor Child was without proper parental care or Court found that Minor Child attend appointments, this by the record. Dr. Burke's diagnosis of failure to thrive is supported control. Syndrome bnperfecta, Vitamin .D Levels, and Ehlers-Danlos b. Osteogenesis child, the Court may make additional orders best found to be a dependent If the child is 42 Pa. physical, mental, and moral welfare of the child. See and suited to the safety, protection to remain with her (providing that the Court may permit the child C.S.A. § 6351(a) Based on the evidence custody subject to conditions and limitations). parent/guardian or transfer Order hearing, this Court included a provision in the Adjudication and testimony in the five-day and for Minor for genetic disorders and bone deficiency disorders that Minor Child be evaluated

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pa.rents to follow any and all recommendations. See May Child's foster parents / kinship foster

10, 2017 Order, 1112(b). imperfecta Child was found not to have osteogenesis OYFS raises the issue that Minor at Penn State Hershey Medical Center, as Vitamin D levels upon testing and had normal and no metabolic Hymel. OYFS also argues that EDS has no test to identify it, explained by Dr. treating physicians. child have been diagnosed by the disease or genetic disorders of the his credibility. See Dr. Hymel's testimony and weighed This Court carefully considered

Findings of Fact and Conclusions of Law, May 10, 2017 Ti 60-104.

disorders and disease as a cause of the out genetic Dr. Hymel testified that he ruled 03/24/2017 disease, rickets, and Vitamin D deficiency. fractures, including metabolic. bone found nothing 73-74. Dr. Hymel opined that Minor Child had normal bones and Trans. at 66-68, Id. at 66, 151, 184. Dr. there was something wrong with Minor Child's bones. to suggest that Test, which was negative for osteogenesis Ilymel ordered a Connective Tissue Genetics

at 77. However, the negative test for osteogenesis imperfecta did imperfecta for Minor Child. Id. Dr. Hymel also rule out the condition, according to Dr. Hymel. Id. at 182-184. not completely 136. not be visible radiologically. Id. at testified that loss of bone density may Id. at 74. also testified that he excluded EDS as a diagnosis for Minor Child. Dr. Hymel other stated he has not diagnosed EDS and would rely on geneticists and However, Dr. Hymel a patient with EDS. EDS. Id. at.37, 44. Dr. Hymel did not recall ever having experts regarding

Id. at 43. and the testimony of Dr. Holick, Dr. Hyman, In contrast, Mother and Father presented Hyman, Dr. Gootnick, and This Court carefully considered the testimony of Dr. Dr. Gootnick. of Law, May 10, weighed their credibility. See Findings of Fact and Conclusions Dr. Holick and

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Minor Child had some type of bone fragility and that 2017 ¶j 105-151. Dr. Hyman opined that his opinion. 05/03/17 Trans. at 56-57. the high number of healing or.occult fractures supported of rickets on Minor Child's radiological Dr. Gootnick testified that she observed evidence examined Mother and Father and diagnosed both studies. 05104/2017 Trans. at 18. Dr. Holick on a review of clinical factors. 04/11/2017 Trans. at 44- with EDS hypermobility type 3, based Child had a 75% chance of having EDS. Id. While 49, 5I-54. Dr. Hoick opined that Minor EDS hypermobility type 3, Dr. Holick's there may not be a specific genetic test to diagnose may diagnosed through a history and physical testimony identified one manner in which EDS

examination. including the treating physicians, this Given the testimony of all the medical experts, to be more fully evaluated for the genetic and Court found it was warranted for Minor Child extensively by the medical experts in this case. bone density disorders that were discussed of these medical diagnoses during his treatment of OYFS's expert, Dr. Hymel, excluded several testified Dr. Hymel's testimony. Rather, Dr. Hymel Minor Child. This Court did not disregard for the diagnosis of EDS and that the current testing for that he would defer to other specialists Mother rule out that condition. Dr. Holick diagnosed osteogenesis imperfecta does not totally -3 based on clinical testing, not genetic testing, and and Father with EDS hypermobility type of having the condition. Out of concern for Minor opined that Minor Child had a 75% chance found it warranted for further medical evaluations Child's best interests and welfare, this Court evidence and testimony provided to this Court during to be ordered out based on the medical

these proceedings.

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Conclusion

For all the above reasons, this Court granted OYFS's petition in part, finding that Minor Child. M.M.-A. is a dependent child, but denied OYFS's petition in regard to a finding of child abuse against Mother V - k and Father A Mc - Additionally, this Court ordered further measures regarding medical evaluations for Minor Child M.-M.A. that were appropriate and in her best interests.

BY THIS COURT:

/7.

HONO Nrs t JULIA K. MUM EY

cc: Written notice of the enhy of the foregoing -1/4R e 1925(a) Opinion has been each party pursuant to Pa. R Civ. P. 236 t'irt) and (d) by provided to transmitting time -stamped copies to: Joseph Gardner Price, Esq. Craig P. Kalinoski, Esq. Leigh Redmond, Esq. 108 North Washington Ave. Lackawanna County Office of Youth and Suite 604 Family Services Scranton, PA 18503 Interdepartmental Mail Attorney for Mother Kevin O'Hara, Esq. Edward Blodnick, Esq. Guardian ad Litem 1325 Franklin Ave. Interdepartmental Mail Suite 555 Garden City, NY 11530 Lori A. Barrett, Esq. Attorney for Mother -Pro Hac Vice 345 Wyoming Ave. #1 George Gretz, Esq. Scranton, PA 18503 304 N Washington Ave. Attorney for Mother Scranton, PA 18503 Attorney for Father

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Footnotes

[21] The trial judge erred and/or abused her discretion by not making a finding of child abuse against the parents. extensive expert This Court had the opportunity to fully evaluate the evidence, including Based on the totality of the medical testimony, and to weigh the credibility of all witnesses. Conclusions of Law, OYFS failed to circumstances, as summarized in the Findings of Fact and . the victim of child abuse as defined show by clear and convincing evidence that Minor Child was by 23 Pa. C.S. § 6303(b.1), (c). doing any of the The term "child abuse" means intentionally, knowingly or recklessly following: (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 [...]

[23] Pa. C.S.A. § 6303 (b.1). Page 3 of 16 or creates a risk of injury or harm to a "Conduct that causes injury or harm to a child is no evidence that the person acted child shall not be considered child abuse if there causing the injury or harm to the child or creating a intentionally, knowingly or recklessly when C.S.A. § 6303(c). risk of injury or harm to the child." 23 Pa. child abuse by the clear and convincing OYFS must demonstrate the existence of determinations. See In re L Z 631 Pa. 343, evidence standard applicable to most dependency and convincing evidence is defined "as testimony that 361, .111 A.3d 1164, 1174 (2015). Clear as to enable the trier of fact to come to a clear is so clear, direct, weighty and convincing of the precise facts in issue." in re K.M. 53 A.3d 781, conviction, without hesitance, of the truth quotations omitted).

[786] (Pa. Super.2012) (citations and internal and convincing that Mother or Father The evidence and testimony in this case is not clear to cause Minor Child's injuries or to create a risk of acted intentionally, knowingly, or recklessly Pa.C.S.A. § 302(b)(1)-(3). injury or harm to the child. See 18 the direct and circumstantial In reaching the above conclusion, this Court considered by OYFS in support of their petition. Dr. evidence and expert medical opinions presented have resulted from sudden and dangerous Hymel opined that the rib fractures might as a mechanism of injury. 03/24/2017 Trans. at 82, 143. compressions to the Minor Child's chest that Mother, Father, or any other person actually made However, there was no other evidence chest. Rather, Dr. Holick, Dr. Hyman, and Dr. Gootnick sudden compressions to Minor Child's Minor Child's rib fractures within a reasonable each provided non-abusive explanations for degree of medical certainty. Dr. Holick opined that Minor Child's rib fractures were fragility fractures that could occur at birth or with normal handling of an infant, such as picking up the child or swaddling. Page 4 of 16 Page 5 of 16