Lancaster Co. CYS v. DHS
CourtCommonwealth Court of Pennsylvania
Date FiledOctober 26, 2026
Docket317 C.D. 2025
JudgeCovey
StatusPublished
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Full Opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lancaster County Children and : SEALED CASE
Youth Social Service Agency, :
Petitioner :
:
v. :
:
Department of Human Services, : No. 317 C.D. 2025
Respondent : Submitted: June 16, 2026
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE STELLA M. TSAI, Judge
OPINION BY
JUDGE COVEY FILED: October 26, 2026
Lancaster County Children and Youth Social Service Agency (CYS)
petitions this Court for review of the Department of Human Services (Department),
Bureau of Hearings and Appeals’ (BHA) February 12, 2025 order adopting the
Attorney Examiner’s (Examiner) February 10, 2025 Recommendation
(Recommendation) to sustain D.A.’s request to expunge her indicated report1 of
1
Section 6303(a) of the Child Protective Services Law (Law) defines an indicated report
as
a report of child abuse made pursuant to [the Law] if an investigation
by the [D]epartment or county agency determines that substantial
evidence of the alleged abuse by a perpetrator exists based on any
of the following:
(i) Available medical evidence.
(ii) The child protective service investigation.
(iii) An admission of the acts of abuse by the perpetrator.
23 Pa.C.S. § 6303(a); see also Section 3490.4 of the Department’s Regulations, 55 Pa. Code §
3490.4.
child abuse from the ChildLine & Abuse Registry (ChildLine Registry).2 CYS
presents one issue for this Court’s review: whether the Department erred or abused
its discretion by adopting the Examiner’s Recommendation to sustain D.A.’s appeal
despite substantial evidence that minor child (Child)3 suffered bodily injuries that
included multiple bone fractures. After thorough review, this Court reverses and
remands.
In July 2020, Child’s mother (Mother) hired D.A. to babysit Child’s
two- and four-year-old siblings two days per week, on days Mother worked her part-
time job as a pharmacist. Mother also began taking Child to D.A. when her
maternity leave ended in October 2021. On Friday, March 11, 2022, Mother
dropped all three children (Children) at D.A.’s home for the day. When Mother
picked the Children up from D.A.’s residence at approximately 4:30 p.m. that day,
she did not observe anything unusual about Child. See Reproduced Record (R.R.)
at 173a-174a. Mother took the Children home and put a movie in for them to watch
while she prepared their dinner.
After dinner, at 6:17 p.m., Mother texted D.A. that Child had a bruise
under Child’s left eye, was fussy and felt warm, and had a soft bump on the head
about which Mother was going to call Child’s pediatrician. See R.R. at 41a-43a,
2
Section 3490.4 of the Department’s Regulations defines ChildLine, in pertinent part, as
[a]n organizational unit of the Department which operates a
[s]tatewide toll-free system for receiving reports of suspected child
abuse established under [S]ection 6332 of the [Law, 23 Pa.C.S. §
6332] (relating to establishment of [s]tatewide toll-free telephone
number), refers the reports for investigation[,] and maintains the
reports in the appropriate file.
55 Pa. Code § 3490.4. “The ChildLine Registry is maintained in accordance with the [Law.]” In
re S.H., 96 A.3d 448, 450 n.2 (Pa. Cmwlth. 2014).
3
Because Child was born in August 2021, Child was six or seven months old in March
2022. As of March 2022, Child was sitting unassisted, but was not yet crawling or walking. See
Reproduced Record at 157a.
2
154a, 157a. D.A. responded that one of the other children4 may have bumped Child
(but denied falls or injuries) and that Child had been fussy and did not take a long
first nap, but slept a long time during her second nap. See R.R. at 23a, 175a-178a.
At approximately 6:30 p.m., when Mother placed Child on the floor, Child
screamed “a painful cry[,]” and Mother observed a golf-ball sized bulge on the top
left side of Child’s head behind Child’s ear. R.R. at 146a (emphasis added); see also
R.R. at 147a. Mother contacted Child’s pediatrician, who instructed her to take
Child to an urgent care facility, which she did. Providers at Lancaster General
Hospital Urgent Care at Kissel Hill examined Child and informed Mother that Child
had a hematoma and bruising near the lump, and Mother should take Child to a
medical facility for a computed tomography (CT) scan. Mother immediately took
Child to the emergency room (ER) of UPMC Lititz. Mother described that during
the examination, the ER physician “was pressing hard on [the hematoma], and
[Child] would scream in pain,” so he conducted a CT scan. R.R. at 148a (emphasis
added). The ER physician informed Mother that the CT scan showed no evidence
of fractures and sent them home with the instruction to call if Mother had additional
concerns.
The next morning, Saturday, March 12, 2022, Mother noticed that
Child’s “face was very swollen[,]” R.R. at 153a, Mother called the pediatrician, and
uploaded a photograph of Child onto the pediatrician’s portal. The pediatrician
opined that Child’s swelling was probably draining down and instructed that if
anything acute appeared, including bruising, Mother should call back. Mother did
not detect any changes in Child on Sunday, March 13, 2022. However, late in the
morning on Monday, March 14, 2022, Mother observed bruises behind both of
4
In addition to Children, D.A. cared for her own two youngest children. D.A.’s oldest
child attended school for part of the day.
3
Child’s ears, and called the pediatrician, who told her to take Child to the Hershey
Medical Center. See R.R. at 154a, 157a.
At Hershey Medical Center, Mother provided a history, and Hershey
Medical Center obtained and reviewed UPMC Lititz’s CT scan, which Lori Frasier,
M.D. (Dr. Frasier) informed Mother and Child’s father (Parents) reflected skull
fractures on both sides of Child’s head, which Dr. Frasier deemed non-accidental.
See R.R. at 155a, 163a. Upon further evaluation, Hershey Medical Center concluded
that Child also had a compression fracture of the spine, a metaphyseal fracture of the
right tibia (shin bone),5 and a healing fracture of the left tibia.6 That same day, the
Department received a referral that Child had been abused.
On March 15, 2022, CYS assigned Child Protective Services intake
caseworker Joshua Harple (Harple) to investigate the matter. Harple visited and
observed Child at Hershey Medical Center and interviewed Dr. Frasier, Parents,
D.A., and D.A.’s husband that same day. Harple determined that Child sustained
multiple injuries indicative of abuse, but that Parents were not indicated in such
abuse. See R.R. at 14a-15a, 18a, 162a-163a. On April 1, 2022, Harple and his
supervisor met with D.A. and her husband, informed them of CYS’s determination,
and asked for D.A. and her husband’s cooperation in the investigation. D.A.
admitted that she was solely responsible for supervising Child in her home, denied
that she or anyone else in her home caused Child’s injuries, and declined further
interview without counsel. Harple prepared a Child Protective Services
Investigation Report (CY-48), which CYS approved on May 12, 2022, indicating
5
Hershey Medical Center placed Child’s right leg in a cast that was removed on April 11,
2022, when Child was completely healed.
6
Hershey Medical Center hospitalized Child until March 17, 2022. During Child’s
admission, Hershey Medical Center determined that Child’s injuries were not related to any
underlying medical conditions, i.e., genetic or blood disorders or history for weak bones or vitamin
deficiencies. See R.R. at 26a, 163a-164a, 192a, 275a-276a.
4
D.A. as the perpetrator of physical abuse against Child between February 14 and
March 11, 2022, “for meeting the criteria outline[d] by the [Child Protective Services
Law (Law)] for [c]ausing bodily injury through any recent act/failure to act.”7 R.R.
at 18a; see also R.R. at 248a-249a, 323a.
On September 15, 2022, the Department mailed D.A. notification of her
listing on the ChildLine Registry as a perpetrator of physical child abuse. On
November 23, 2022, D.A. filed an expungement appeal and requested a hearing.
The Examiner held hearings on July 31 and November 6, 2023, during which
Mother, Harple, and Dr. Frasier testified on CYS’s behalf, and John Galaznik, M.D.
(Dr. Galaznik) testified on D.A.’s behalf. The Examiner admitted the CY-48,
photographs, imaging and hospital reports, and Dr. Galaznik’s report into evidence.
On February 10, 2025, the Examiner issued his Recommendation that the BHA
sustain D.A.’s expungement appeal. See R.R. at 455a (Recommendation); see also
CYS Br. App. A. The Examiner found the witnesses’ testimony regarding Child’s
pain and impairment due to Child’s injuries “undisputed and therefore credible,”
R.R. at 467a, and concluded that CYS “failed to present substantial evidence [that
Child] suffered a bodily injury even though she suffered multiple bone fractures.”8
R.R. at 468a. On February 12, 2025, the BHA adopted the Examiner’s
7
Perpetrator is defined in Section 6303(a) of the Law as “[a] person who has committed
child abuse[,]” and includes “[a] person 14 years of age or older and responsible for the child’s
welfare or having direct contact with children as an employee of child-care services, a school or
through a program, activity or service.” 23 Pa.C.S. § 6303(a). The Law defines person responsible
for the child’s welfare as “[a] person who provides permanent or temporary care, supervision,
mental health diagnosis or treatment, training[,] or control of a child in lieu of parental care,
supervision[,] and control.” 23 Pa.C.S. § 6303(a). Therefore, a babysitter can be a perpetrator
under the Law. See K.J. v. Pa. Dep’t of Pub. Welfare, 767 A.2d 609 (Pa. Cmwlth. 2001); see also
S.T. v. Dep’t of Pub. Welfare, Lackawanna Cnty. Off., Child., Youth & Fam. Servs., 681 A.2d 853
(Pa. Cmwlth. 1996).
8
The Examiner further concluded: “As there was less than substantial evidence [Child]
suffered the prerequisite bodily injury for there to be a finding of abuse, there is no need to review
whether [D.A.] should be found culpable for the injuries.” R.R. at 467a.
5
Recommendation in its entirety. See R.R. at 455a. On March 13, 2025, CYS
appealed to this Court.9
CYS argues that the BHA erred by adopting the Recommendation that
CYS failed to establish by substantial evidence that Child suffered bodily injury
under the Law. CYS acknowledges that Child did not show signs of pain during her
evaluation at Hershey Medical Center but argues that CYS and this Court “must look
to the time when those injuries were inflicted upon [Child] and whether the actions
resulting in those injuries caused substantial pain.” CYS Br. at 16. In addition, CYS
urges this Court to adopt the Pennsylvania Superior Court’s (Superior Court) holding
in Interest of S.A.S., 305 A.3d 1039 (Pa. Super. 2023). Specifically, CYS contends
that Mother’s credible testimony regarding Child’s screams of pain on March 11,
2022, in conjunction with Dr. Frasier’s expert testimony regarding Child’s injuries,
and the common experience of individuals with such injuries, support that Child
suffered bodily injury.
Initially, Section 6341(a)(2) of the Law authorizes the Department “to
. . . expunge an indicated report on the grounds that it is inaccurate . . . .” 23 Pa.C.S.
§ 6341(a)(2). The county agency bears the burden of proving that an indicated report
is accurate and should remain on the ChildLine Registry. See Section 6341(c.2)(5)
of the Law, 23 Pa.C.S. § 6341(c.2)(5); see also R.J.W. v. Dep’t of Hum. Servs., 139
A.3d 270 (Pa. Cmwlth. 2016). In addition, this Court has explained:
9
On March 30, 2025, D.A. filed a Notice of Intervention. On September 23, 2025, the
Department informed this Court that it did not intend to participate in the appeal.
[This Court’s] review of an adjudication in an expunction
proceeding determines whether constitutional rights were violated,
whether errors of law were committed, and whether the necessary
findings of fact are supported by substantial evidence. Whether
CYS’s evidence satisfied the evidentiary standard necessary to meet
its burden of proof is a question of law.
P.L. v. Dep’t of Hum. Servs., 236 A.3d 1208, 1211 n.3 (Pa. Cmwlth. 2020) (citation omitted).
6
“[I]n an expunction hearing the standard of proof is
preponderance of the evidence, and the statutory
standard for the evidence is ‘[e]vidence which
outweighs inconsistent evidence and which a
reasonable person would accept as adequate to support
a conclusion. 23 Pa.C.S. § 6303(a).’” A.P. v. Dep[’t] of
Pub[.] Welfare, 98 A.3d 736, 742-43 (Pa. Cmwlth.
2014).[10] In order for the fact[-]finder to reach a
conclusion of abuse, “the ‘evidence must so preponderate
in favor of a conclusion that it outweighs . . . any
inconsistent evidence and reasonable inferences
therefrom.’” R.J.W., 139 A.3d at 282 (quoting In re S.H.,
96 A.3d 448, 453 n.4 (Pa. Cmwlth. 2014)).
Allegheny Cnty. Off. of Child., Youth & Fams. v. Dep’t of Hum. Servs., 202 A.3d
155, 163 (Pa. Cmwlth. 2019) (emphasis added; footnote omitted); see also A.O. v.
Dep’t of Pub. Welfare, 838 A.2d 35, 39 (Pa. Cmwlth. 2003) (The county agency
“must present evidence that outweighs any conflicting evidence that [the]
petitioner’s conduct constituted child abuse.”).
Section 6303(b.1)(1) of the Law defines child abuse to include
intentionally, knowingly, or recklessly “[c]ausing bodily injury to a child through
any recent act or failure to act.” 23 Pa.C.S. § 6303(b.1)(1). Because the record
supports that Child is a child,11 D.A. could be a perpetrator,12 and the purported act
10
This Court has clarified that the statutory substantial evidence standard applied under the
Law differs from the substantial evidence standard applied on appellate review under Section 704
of the Administrative Agency Law, 2 Pa.C.S. § 704. “The . . . standard [under the Law]
incorporates a ‘weighing dynamic[,]’” whereas the standard under the Administrative Agency
Law “omits . . . weighing - instead, th[at] deferential form of review entails only an examination
of whether the evidence, viewed in a light most favorable to the prevailing party, is adequate to
support the administrative agency’s factual findings.” A.P., 98 A.3d at 742 (quoting G.V. v. Dep’t
of Pub. Welfare, 91 A.3d 667, 674 (Pa. 2014) (Saylor, J., concurring)); see also Allegheny Cnty.
Off. of Child., Youth & Fams. v. Dep’t of Hum. Servs., 202 A.3d 155 (Pa. Cmwlth. 2019).
11
Section 6303 of the Law defines child as “[a]n individual under 18 years of age.” 23
Pa.C.S. § 6303. The record evidence clearly supports the Examiner’s findings that: Child was a
child. See R.R. at 457a.
12
As a person over 14 years of age with sufficient responsibility for Child’s care not subject
to an exclusion, D.A. is eligible as a perpetrator to be listed on the ChildLine Registry. See R.R.
7
was recent,13 this Court need only review whether record evidence supported that
Child suffered bodily injury, either intentionally, knowingly, or recklessly.14 Section
6303(a) of the Law defines bodily injury as the “[i]mpairment of physical
condition or substantial pain.”15 23 Pa.C.S. § 6303(a) (emphasis added). The Law
does not further define the terms impairment of physical condition or substantial
pain.
Here, Mother testified that Child “seemed fussy, more fussy[, l]ike a
cold, runny nose, fussy type” after she got the Children home from D.A.’s house on
March 11, 2022. See R.R. at 176a. She confirmed D.A. reporting that Child was
fussy during the day. See R.R. at 176a-178a. Mother recalled that when she laid
Child down to change Child that night at approximately 6:30 p.m., Child
“screamed.” R.R. at 146a; see also R.R. at 190a. She described: “[Child’s] cry was
a painful cry. It was nothing like I had heard before. I knew something was
wrong. And that’s when I noticed this bulge on [Child’s] head.” R.R. at 146a
(emphasis added). However, Mother did not observe Child having any difficulty
at 467a. Child abuse “does not include any conduct for which an exclusion is provided in [S]ection
6304 [of the Law, 23 Pa.C.S. § 6304] (relating to exclusions from child abuse).” 23 Pa.C.S. §
6303(d). Section 6304(c) of the Law declares that “reasonable force” used by a person responsible
for a child’s welfare “shall not constitute child abuse” if it is incidental, minor, or reasonable to
maintain order and control, particularly where it is necessary to quell a disturbance or prevent a
child from self-inflicted harm. See 23 Pa.C.S. § 6304(c). Here, D.A. did not aver that she is
subject to any exclusion.
13
Section 6303(a) of the Law defines recent act or failure to act as “[a]ny act committed
within two years of the date of the report to the [D]epartment or county agency.” 23 Pa.C.S. §
6303(a). Since Child’s injuries occurred within the two years before March 14, 2022, they were
recent. See R.R. at 467a.
14
Because the BHA adopted the Examiner’s Recommendation that did not determine
whether D.A. was culpable for Child’s injuries, see n.8; see also R.R. at 467a, this Court does not
reach that issue herein.
15
CYS declared at the November 6, 2023 hearing that it was proceeding on the theory that
Child suffered both impairment of a physical condition and substantial pain. See R.R. at 323a.
8
when touched around her legs or low back when being held, nursed, or placed in a
highchair. See R.R. at 189a-190a.
Mother also admitted that Child was fine and did not react at all when
she placed Child on her back to change her on Saturday morning, March 12, 2022.
See R.R. at 190a-191a. When asked whether Child had any residual effects from the
injuries, Mother responded: “Not that I know of.” R.R. at 164a.
Dr. Frasier, the Director of the Center for the Protection of Children,
the Director of the Child Protection Team, and a Professor of Pediatrics at Penn State
Hershey College of Medicine, and who the parties stipulated was an expert in general
pediatrics and pediatric child abuse, recalled observing on Monday, March 14, 2022,
that Child had bruising behind both ears and a bump on the head. See R.R. at 38a-
39a, 263a, 270a. Mother reported to her that since UPMC Lititz released Child on
Friday, March 11, 2022, Child “had no changes in her behavior or demeanor.” R.R.
at 26a, 265a.
Dr. Fraiser explained that, using UPMC Lititz’s CT scan, Hershey
Medical Center was able to develop a three-dimensional scan that Hershey Medical
Center’s board-certified neuroradiologist determined reflected Child’s slightly
separated bilateral skull fractures with scalp swelling over those areas and blood
under the right side. See R.R. at 25a, 31a, 266a-268a, 279a-281a, 307a-308a. She
declared that swelling evident of skull fractures generally appears one or two days
and possibly up to one week after an injury. See R.R. at 268a-269a, 297a, 304a-
305a. In light of Mother’s representation regarding Child’s reaction to being placed
on the floor on Friday, March 11, 2022, Hershey Medical Center conducted a
skeletal survey that revealed a small chip fracture near Child’s right ankle, a healing
left leg fracture, and deformities in Child’s lumbar vertebrae exhibited as wedges.16
16
Vertebral bodies are generally rectangular, where Child’s were flatter toward the front
of Child’s body, appearing like a wedge. See R.R. at 364a-365a.
9
See R.R. at 25a, 31a, 272a-273a. Dr. Frasier could not precisely time when Child’s
leg or spine fractures occurred, other than to say they could have occurred up to two
weeks before March 11, 2022. See R.R. at 296a, 300a. Dr. Frasier described that,
although some children naturally exhibit vertebral wedging, Hershey Medical
Center’s magnetic resonance imaging test showed that Child’s were compression
deformities with accompanying swelling caused by trauma. See R.R. at 274a.
Dr. Frasier opined that in light of the different ages of Child’s fractures
and varying injury mechanisms, Child’s injuries were not accidental. R.R. at 25a,
276a, 282a, 286a. She described:
So skull fractures are caused by blunt force trauma,
substantial blunt force trauma. We see a lot of accidental
skull fractures in children who fall off things. We didn’t
get any history of that. Vertebral body fractures are caused
when the force of a blunt force goes through the length of
the spine and the child is bent forcefully forward. That’s
called flexion. That’s what causes those compression
fractures. So we call [sic] the spine fractures are due to a
forceful compression through the spine[; such as if] a child
is thrown down hard on their bottom and bent forward, or
bent forward very forcefully.
The metaphyseal fractures are caused by grabbing,
pulling[,] and twisting the extremity. It pulls those little
chips off the ends of the bones. The diaphysis, or the shaft
fracture of the left tibia, which we could only see by
periosteal reaction. It could be pure periosteal reaction
from grabbing and pulling on the leg, which causes
damage. The periosteum is that thick membrane which
covers the shaft of the bones and is very thick and vascular.
In infants, it could be caused just by that or there could be
a healing fracture. So it would have been a small hairline
fracture, but that’s what we see on the x-rays and that goes
away. So we have leg fractures, which have a different
mechanism of trauma from spine fractures, which have a
different mechanism of trauma from skull fractures.
10
R.R. at 277a-278a; see also R.R. at 308a-309a. Dr. Frasier testified that although
the pediatric radiologist used the term deformities in reviewing Child’s leg images,
the radiologist opined that the changes were not natural physiologic periosteum new
bone formation often evident in young, developing children. See R.R. at 34a, 299a,
302a-303a.
In response to Mother’s recollection at the hearing of Child’s accidental
fall from a couch onto a carpeted floor at some point before March 11, 2022,17 Dr.
Frasier opined that bilateral skull fractures from a single fall would generally require
a fall from a height of more than three feet onto a hard surface, “[s]o either there was
a much more substantial unreported height onto a hard surface to explain that or
there were two episodes of blunt force trauma to either side of the head. And that
still does not explain the additional fractures.” R.R. at 280a; see also R.R. at 279a,
300a, 307a, 319a-320a. She found the skull swelling and bruising consistent with
Mother’s description that Child’s injuries occurred on March 11, 2022. See R.R. at
280a-281a, 286a.
Dr. Frasier further recalled that when Child returned to Hershey
Medical Center for follow-up on March 28, 2022, Child was not experiencing any
deficits or problems. See R.R. at 293a. When asked: “Did [Child] experience any
pain of any sort from these injuries as far as you’re aware[,]” Dr. Frasier responded:
“Well, [Child] was having trouble laying on [Child’s] back, [Mother] noticed. And
[Child’s] a baby, if [Child] cries, we don’t know if [Child’s] in pain. [Child] doesn’t
walk, so we don’t know if [Child’s] in pain. But certainly fractures cause pain.
There’s no question about that.” R.R. at 312a (emphasis added). Dr. Frasier added:
“It’s hard to know because they don’t tell you where they hurt or that they hurt.”
17
Mother did not mention Child’s fall from the couch to Hershey Medical Center, nor
previous mild bruising on Child’s chest, buttocks, or bruising under Child’s left eye on March 11,
2022. See R.R. at 41a, 154a, 158a-159a, 290a-291a, 293a-294a, 305a-306a, 308a-309a, 314a.
11
R.R. at 315a. The signs Dr. Frasier pointed to that show Child experienced
substantial pain were Mother’s reports that Child could not lay on her back very
well, and Child was fussy. See R.R. at 315a-316a. Dr. Frasier admitted that the
tenderness Child likely felt over her scalp on March 11, 2022, had dissipated by the
time Child was examined at Hershey Medical Center (i.e., Child “wasn’t that tender
when we saw [Child]),” and Hershey Medical Center staff did not press hard enough
on Child’s fractures to elicit a pain response. R.R. at 316a. Nevertheless, she
declared that Child would have been experiencing pain because “[f]ractures cause
pain in everybody.” R.R. at 317a (emphasis added).
Regarding physical impairments, Dr. Frasier testified:
So we don’t know if [Child’s] spine is going to be normal.
That will have to be followed over time. The orthopedic
surgeon made a recommendation to make sure [Child’s]
not developing any curvature of [the] spine. Certainly,
[Child] did have a small bit of blood under [the] scalp,
under [the] skull, over [the] brain. That needs to be
[Child’s] development. [Child’s] growth needs to be
followed over time. So at the time of [Child’s] injury,
we’re worried about impairment.
R.R. at 313a. Dr. Frasier continued:
[T]he orthopedic surgeon gave advice to [Mother] when
she saw her on the 11th of April to watch for changes in
[Child’s] spine development and things like that. So she
was referred back to [Child’s] general pediatrician for
those kinds of things. And so also[,] [Child] had a head
trauma. [Child] had substantial head trauma, even though
[Child] wasn’t showing any neurological signs. We know
that children still may develop problems later on from that
head trauma. So there’s still a lot to know about [Child’s]
future and if something’s going to change over time that’s
related to these injuries.
R.R. at 316a-317a. Dr. Frasier admitted that she currently has no evidence that Child
is suffering any physical impairment. See R.R. at 321a.
12
The Examiner accepted Dr. Galaznik as an expert in pediatrics. See
R.R. at 333a. Dr. Galaznik testified that he reviewed the CY-48, Child’s medical
records, and imaging/reports. Relying on literature, without examining Child, he
challenged that Child’s injuries may not have been fractures at all. In particular, Dr.
Galaznik claimed that literature provided alternative explanations, namely, skeletal
variants can have similar appearances to fractures. He added that, except for scalp
swelling, Child demonstrated no external evidence of trauma and no pain or
tenderness or bleeding one would expect with fractures. Dr. Galaznik further
concluded that Child never had any clinical neurologic symptoms, back, or right or
left leg symptoms or findings on examination, and Hershey Medical Center’s
orthopedic doctor released Child to be seen only on an as needed basis. However,
he ultimately could not rule out that some skull trauma - including defects consistent
with fractures - may have occurred on March 11, 2022, or up to the 10 preceding
days. See R.R. at 406a-407a, 426a, 429a-430a. He also agreed with Dr. Frasier that
scalp swelling could begin shortly after a head injury occurs. See R.R. at 430a.
Dr. Frasier asserted that Dr. Galaznik’s opinions regarding the fractures
did not change her conclusions, since the literature he relied upon did not apply in
this instance, and he is not a board-certified pediatric radiologist like the persons
upon whose diagnoses she relied. See R.R. at 284a-286a, 291a-292a.
“In child abuse expunction proceedings, the [BHA], as the
[Department] Secretary’s designee, is the ultimate finder of fact, and the ultimate
arbiter of the weight to be assigned to the evidence presented.” Beaver Cnty. Child.
& Youth Servs. v. Dep’t of Pub. Welfare, 68 A.3d 44, 47 n.4 (Pa. Cmwlth. 2013).
Here, the BHA adopted the Examiner’s Recommendation that “[t]he relevant
testimony of the witnesses regarding the pain and impairment suffered by [Child]
for the alleged injuries was undisputed and therefore credible.” R.R. at 467a. The
BHA also adopted the Examiner’s conclusion:
13
CYS provided less than substantial evidence [that Child]
experienced a bodily injury. . . . The hearing record shows
[Mother] was first alerted to something amiss when
changing [Child’s] clothing during the evening of March
11, 2022. [Child] crying while on [Child’s] back being
changed led to [Mother] discovering the head swelling.
However, [Mother] also noted [Child] was feeling unwell
and was feverish at the time, so it complicates determining
whether the crying was due to pain for feeling unwell as
Dr. Frasier asserted [Child’s] spine injuries would not
have caused pain while she lay on her back due to the
injuries being on the anterior side of the spine. As to the
skull and leg injuries, Dr. Frasier was unwilling to opine
as to the level of pain [Child] experienced from them. She
merely asserted it would have caused pain without
qualifying it. Furthermore, neither [Mother] nor Dr.
Frasier found the skull, spine, and leg injuries resulted in
a substantial physical impairment to [Child] as she was not
yet walking. Dr. Frasier’s speculating about potential
future developmental harm from the spinal injuries does
not rise [to] the [Law’s] requisite level of physical
impairment to be a bodily injury. Finally, the undersigned
lacks the medical training and experience to make what
amounts to medical determinations contrary to the expert
opinions of Dr. Frasier to support a finding abuse[.] J.S.
v. Dep’t of Hum[.] S[ervs.], 221 A.3d 333 (Pa. Cmwlth.
2019). Accordingly, [CYS] failed to demonstrate the
injuries to [Child’s] skull, spine, and legs met the
definition of bodily injuries [under] the [Law] for them to
support a finding of abuse.
R.R. at 467a (citation omitted).
“When performing th[e] ‘weighing dynamic [(i.e., whether evidence
outweighs inconsistent evidence)],’ the fact[-]finder must make and explain
credibility determinations, and weigh the evidence ‘with reference to demeanor and
substance of the testimony and all other evidence to enable meaningful appellate
review.’” Allegheny Cnty., 202 A.3d at 163 (quoting A.P., 98 A.3d at 744-45). In
the instant matter, although the BHA did not make specific findings weighing
inconsistent evidence in this case, this Court can nevertheless conduct meaningful
14
appellate review.18 Specifically, where Mother, Dr. Frasier, and Dr. Galaznik
agreed, see R.R. at 58a, 164a, 321a, 433a-434a, 439a, substantial record evidence
supported the BHA’s conclusion that Child did not suffer an impairment of a
physical condition.
Regarding substantial pain, despite concluding that Mother’s testimony
regarding Child’s screams of pain on the evening of March 11, 2022, was credible
and making findings to that effect, see Findings of Fact (FOF) 14, 60, and finding
credible Dr. Frasier’s testimony that Child’s injuries consisted of fractures that
would have caused Child pain, see FOFs 25, 31-35, 38-39, 41, 60, because “Dr.
Frasier was unwilling to opine as to the level of pain [Child] experienced from [the
fractures,]” the BHA determined that CYS’s evidence did not support a finding that
Child’s pain was substantial. R.R. at 467a (emphasis added); see also FOF 41.
However, before the General Assembly amended Section 6303 of the
Law in 2013 (effective December 31, 2014) to define bodily injury as the
“[i]mpairment of physical condition or substantial pain[,]” 23 Pa.C.S. § 6303(a),
Section 1 of the Act of December 18, 2013, P.L. 1170, child abuse was defined to
require “serious physical injury.” Former 23 Pa.C.S. § 6303(a). A serious physical
injury was defined as “[a]n injury that: (1) causes a child severe pain; or (2)
significantly impairs a child’s physical functioning, either temporarily or
permanently.” Id. (emphasis added); see also F.R. v. Dep’t of Pub. Welfare, 4 A.3d
779 (Pa. Cmwlth. 2010). Therefore, with that amendment, the General Assembly
18
Although the BHA adopted the Examiner’s findings that “[t]he testimony of the
witnesses was credible[,]” R.R. at 463a (emphasis added); see also R.R. at 467a, the only findings
related to Dr. Galaznik’s testimony appear in Finding of Fact (FOF) 38 (wherein the Examiner
found that Dr. Frasier noted Dr. Galaznik’s report disputed her conclusion that Child’s spinal
deformities were the result of trauma rather than developmental variances) and FOF 39 (wherein
the Examiner found that Dr. Frasier agreed with Dr. Galaznik’s report that Child’s left tibia did
not show a fracture but Dr. Frasier determined that evidence showed it was a possible fracture and
healing from trauma), which supports that the Examiner found that Dr. Frasier’s conclusions
outweighed Dr. Galaznik’s inconsistent testimony on those matters. See R.R. at 457a-463a.
15
eliminated the requirement that a child suffer severe pain and replaced it with
substantial pain.
Moreover, in S.A.S., a dependency proceeding brought under the
Juvenile Act,19 wherein a seven-month-old child was presented at the hospital with
multiple unexplained arm and rib fractures and bruising on the child’s wrist, ribs,
and elbows, the Superior Court reversed the trial court’s determination that the
Department failed to prove substantial pain necessary for bodily injury, reasoning:
The New York Court of Appeals has observed that
although “‘substantial pain’ cannot be defined
precisely, [ ] it can be said that it is more than slight or
trivial pain. Pain need not, however, be severe or
intense to be substantial.” People v. Chiddick, . . . 866
N.E.2d 1039[, 1040] ([N.Y.] 2007). This observation is
consistent with criminal cases in this Commonwealth
where “bodily injury” under the Crimes Code is defined
the same as under the [Law], i.e., as the “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S. § 2301.
In that context, this Court has observed that “injuries that
are trivial in nature” do not satisfy the statutory definition
of bodily injury. Commonwealth v. Wroten, 257 A.3d 734,
744 (Pa. Super. 2021) (citation omitted). “[T]he existence
of substantial pain may be inferred from the
circumstances surrounding the use of physical force even
in the absence of a significant injury.” Id. (citation
omitted). In fact, Pennsylvania [c]ourts have found
“substantial pain” for “bodily injury” purposes where
the injuries are far less severe than those at issue here
[(i.e., arm and rib fractures and bruising on the child’s
wrist, ribs, and elbows)]. See, e.g., Commonwealth v.
Marti, 779 A.2d 1177, 1181-82 (Pa. Super. 2001)
(deliberate punch with a closed fist resulting in “slight
swelling and pain” met statutory definition of bodily
injury); In re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000)
(individual who aggressively grabbed arm of another and
pushed her against wall caused substantial pain for bodily
injury, even though victim did not require medical
19
42 Pa.C.S. §§ 6301-6375.
16
attention and only sustained bruises that lasted a few
days[]); Commonwealth v. Richardson, . . . 636 A.2d 1195,
1196 ([Pa. Super.] 1994) (punch to the face that broke the
victim’s glasses and caused pain for several days caused
bodily injury as defined by Crimes Code).
S.A.S., 305 A.3d at 1051-52 (emphasis added).20 The S.A.S. Court concluded:
[I]t is undisputed that [a] seven-month-old [c]hild had
fractures to her two arms and one rib, more significant
injuries than those detailed above that satisfied the
substantial pain required for a “bodily injury[.]”[] See
Boggavarapu v. Ponist, . . . 542 A.2d 516, 518 ([Pa.] 1988)
(“We have held and hold now that there are injuries to
which human experience teaches there is accompanying
pain. Those injuries are obvious in the most ordinary
sense: the broken bone . . . and all the consequences of
any injury traceable by medical science and common
experience as sources of pain and suffering.”).
S.A.S., 305 A.3d at 1052 (emphasis added);21 see also Interest of X.C. (Pa. Super.
Nos. 2963, 2964 EDA 2023, filed Sept. 5, 2024) (“Akin to S.A.S., [the doctor] clearly
testified several times throughout the hearing that rib injuries are likely to be painful,
and specifically likely to be painful for a four-month-old child[; s]he explained that
by the time she examined the [c]hild, her rib injuries were healing and[,] thus[,] she
would not expect [them] to be tender to the touch.” Slip op. at 21 (record citations
and quotation marks omitted)).22
20
This Court is “not bound by the