In the Int. of: N.B.-W.. Appeal of: E.S. ( 2022 )


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  • J-S04034-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: N.B.-W., A        :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
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    APPEAL OF: E.S.                       :
    :
    :
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    :   No. 1351 EDA 2021
    Appeal from the Order Entered June 25, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-DP-0001116-2020
    IN THE INTEREST OF: N.B.-W., A        :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
    :
    :
    APPEAL OF: E.S.                       :
    :
    :
    :
    :   No. 1352 EDA 2021
    Appeal from the Order Entered June 25, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-DP-0001116-2020
    IN THE INTEREST OF: D.A.-S., A        :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
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    :
    APPEAL OF: E.S., FATHER               :
    :
    :
    :
    :   No. 1353 EDA 2021
    Appeal from the Order Entered June 25, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-DP-0001268-2020
    IN THE INTEREST OF: D.A.-S., A        :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
    J-S04034-22
    :
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    APPEAL OF: E.S., FATHER                    :
    :
    :
    :
    :   No. 1354 EDA 2021
    Appeal from the Order Entered June 25, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-DP-0001268-2020
    BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                           FILED FEBRUARY 23, 2022
    E.S. (“Father”) appeals from the juvenile court's June 25, 2021 order
    adjudicating N.B.-W. and D.A.-S. (collectively, “Children”) dependent and
    finding that Father was a perpetrator of child abuse with respect to A.W., the
    Children’s    deceased,      four-year-old     brother    (hereinafter,   “Decedent”),
    pursuant to the Child Protective Services Law (“CPSL”).1 After careful review,
    we affirm.
    The juvenile court summarized the relevant facts and procedural history
    of this case as follows:
    On October 9, 2020, the Philadelphia Department of
    Human Services (“DHS”) received a Child Protective
    Services (“CPS”) Report alleging that [N.B.-W.’s]
    four-year-old maternal Decedent (“Decedent”) was
    transported from a hotel to the Children’s Hospital of
    Philadelphia (“CHOP”) and pronounced dead upon
    arrival.  The CPS Report alleged that Decedent
    suffered from several medical conditions, including
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1   23 Pa.C.S.A. §§ 6301-6386.
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    microcephaly,      asthma,      seizure      disorder,
    developmental delays, and Decedent required
    gastrostomy tube (G-Tube) placement. DHS received
    a supplement to the CPS report alleging that Decedent
    had been confined to bed and was diagnosed as
    suffering from cerebral palsy, infantile spasms,
    chronic     lung      disease,     encephalomalacia,
    microcephaly, hydrocephalus, and seizures.
    On October 15. 2020. DHS received a General
    Protective Services (“GPS”) report alleging that
    Decedent’s ten (10) year old half[-]brother[, N.B.-W,]
    was left alone with the medically needy four (4) year
    old Decedent for 10 to 12 hours a day and up to three
    to four days a week. The GPS Report alleged Mother
    was hospitalized between September 16, 2020
    through October 9, 2020 due to pregnancy
    complications.[fn] Father was the caregiver[fn] for
    Child N.B.-W and Decedent during this period. The
    GPS Report alleged that on October 9, 2020, the
    Decedent died when left under the care of his Child
    N.B.-W, without adult supervision. On November 24,
    2020, DHS obtained an Order for Protective Custody
    [(“OPC”)] for [Children]. On November 25. 2020, a
    shelter care hearing was held and the OPC was lifted
    and the temporary commitment was ordered.
    [Children] were placed in the care of a maternal uncle
    and the instant Dependency Petition was filed on
    December 4, 2020.
    [fn] Mother was pregnant with Child D.A.-S during this
    period. Child D.A.-S was born on October 5, 2020.
    [fn] Father is the biological father of Child D.A.-S.
    Father at all material times was Mother’s paramour.
    Children N.B.-W and Decedent are half siblings but not
    the biological children of Father.
    Juvenile court opinion, 11/2/21 at 3-4 (citations and dates of birth omitted;
    footnotes in original).
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    On June 25, 2021, the juvenile court held a hearing to determine if
    Children should be adjudicated dependent and Father committed child abuse
    against Decedent.    Following the hearing, the juvenile court adjudicated
    Children dependent and made a finding of child abuse pursuant to 23
    Pa.C.S.A. § 6303(b.1)(7) and (9). Father filed a timely notice of appeal on
    July 12, 2021. That same day, Father filed his concise statement of errors
    complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On November
    2, 2021, the juvenile court filed its Rule 1925(a) opinion.
    Father raises the following issues for our review:
    1.    Did the [juvenile] court err by making a finding
    of child abuse as to [Father] where “clear and
    convincing evidence” was not provided, that
    [Father], either directly or by neglect caused
    injuries to the child, as required by 42 Pa.C.S.A.
    § 6381(a) and 23 Pa.C.S.A. § 6303?
    2.    Did the [juvenile] court err in determining that
    aggravated    circumstances      exist   against
    [Father] as DHS failed to prove by “clear and
    convincing evidence” that Father either directly
    or by neglect caused the child’s injuries, as
    required by 42 Pa.C.S.A. § 6381(a) and 42
    Pa.C.S.A. § 6302?
    3.    Did the [juvenile] court err or abuse its
    discretion by making a finding of dependency as
    to Father as DHS failed to prove by “clear and
    convincing evidence” that the child was a
    dependent child, as required by 42 Pa.C.S.A.
    § 6302(1)?
    4.    Did the [juvenile] court err or abuse its
    discretion by failing to provide Father with an in
    person hearing instead of a virtual hearing thus
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    violating [Father’s] due     process   rights   to
    fundamental fairness?
    Father’s brief at 6.
    For the purposes of our review, we elect to address Father’s claims in a
    slightly different order than presented in his appellate brief.          Father first
    argues that the juvenile court abused its discretion in finding that he
    committed    “child    abuse”   with   respect   to   Decedent   under      Sections
    6303(b.1)(7) and (9) of the CPSL. Id. at 13-15.
    Section 6303 of the CPSL defines “child abuse,” in relevant part, as
    follows:
    (b.1) Child abuse.--The term “child abuse” shall
    mean intentionally, knowingly or recklessly doing any
    of the following:
    ....
    (7) Causing serious physical neglect of a child.
    ....
    (9) Causing the death of the child through any act or
    failure to act.
    23 Pa.C.S.A. § 6303(b.1)(7), (9).
    “Serious physical neglect” is defined by the CPSL as the “repeated,
    prolonged or egregious failure to supervise a child in a manner that is
    appropriate considering the child’s developmental age and abilities.” Id. at
    § 6303(a).
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    A finding of “child abuse” under Section 6303(b.1) must be proven by
    clear and convincing evidence.     In re L.V., 
    209 A.3d 399
    , 417 (Pa.Super.
    2019) (citations omitted). “Clear and convincing evidence” requires:
    that the witnesses must be found to be credible; that
    the facts to which they testify are distinctly
    remembered and the details thereof narrated exactly
    and in due order; and that their testimony is so clear,
    direct, weighty, and convincing as to enable the trier
    of fact to come to a clear conviction, without
    hesitancy, of the truth of the precise facts in issue. It
    is not necessary that the evidence be uncontradicted,
    provided it carries a clear conviction to the mind or
    carries a clear conviction of its truth.
    In the Interest of J.M., 
    166 A.3d 408
    , 423 (Pa.Super. 2017) (citation
    omitted).
    Lastly, we note that the CPSL adopts the definitions of intentionally,
    knowingly, and recklessly outlined in our Crimes Code.         See 23 Pa.C.S.A.
    § 6303(a).
    A person acts recklessly with respect to a material
    element of an offense when he consciously disregards
    a substantial and unjustifiable risk that the material
    element exists or will result from his conduct. The risk
    must be of such a nature and degree that, considering
    the nature and intent of the actor’s conduct and the
    circumstances known to him, its disregard involves a
    gross deviation from the standard of conduct that a
    reasonable person would observe in the actor’s
    situation.
    18 Pa.C.S.A. § 302(b)(3).
    In the instant matter, the juvenile court found that Father acted
    recklessly when he left Decedent, a four-year-old child who required
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    specialized medical care, in the care of his ten-year-old brother, ultimately
    resulting in Decedent’s death. Juvenile court opinion, 11/2/21 at 14. The
    juvenile court stated:
    This case is so clear and so convincing to the Court
    that it is an overwhelming case of child abuse, not
    only that resulted in the death of [Decedent], but it is
    child abuse versus the 10-year-old [N.B.-W.], being
    left alone for five and a half hours to care for such a
    medically needing sibling.
    It’s just beyond unconscionable. And five and a half
    hours – this child should not have been left five and a
    half minutes. The parents knew the lifetime needs of
    this child.
    ....
    And leaving [Decedent] with Father for 10 minutes,
    after what I heard of his testimony, would be
    completely reckless.
    [Father’s totally incapable – I don’t know how he takes
    care of himself, let alone being responsible for children
    in a home. It’s just shocking to the conscience what
    happened here.
    ....
    [Decedent] died by neglect. And what a life this child
    had. It was horrible. And to be abandoned, basically,
    and left with a 10-year-old sibling is just frightening.
    Notes of testimony, 6/25/21 at 128-129. Following our careful review, we
    agree.
    The record supports a finding that Father caused “serious physical
    neglect” to both N.B.-W and Decedent under Section 6303(b.1)(7) of the
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    CPSL, and that Father’s recklessness ultimately caused Decedent’s death,
    pursuant to Section 6303(b.1)(9).
    At the June 25, 2021 hearing, DHS investigator Tierra Dunn testified
    that her investigation following Decedent’s death revealed that Mother was
    hospitalized between September 6 to October 9, 2020 due to complications
    with her pregnancy and Father was working eight-hour shifts.           Notes of
    testimony, 6/25/21 at 55, 61-62, 65.        During this time period, Father left
    Decedent in the care of his ten-year-old brother, N.B.-W., for 10 to 12 hours
    a day, and up 3 to 4 days a week. Id.
    Dunn also testified that Father acknowledged that he did not feed,
    change, or provide Decedent with medication because he didn’t feel
    comfortable and was not trained to do so.        Id. at 73, 76-77.   The record
    reflects that on the day of Decedent’s death, Father left him home alone with
    N.A.-B. around noon to pick up Mother from the hospital but did not return
    until more than five hours later, after he and Mother went to a restaurant for
    dinner. Id. at 64, 66.
    Dr. Renee Turchi, an expert in pediatric medicine and the Medical
    Director of the Center for Children and Youth with Special Healthcare Needs
    at St. Christopher’s Hospital for Children, testified that Decedent suffered from
    a number of severe medical conditions that required around-the-clock
    monitoring by trained caregivers. Id. at 12-19. Specifically, Dr. Turchi noted
    that Decedent had a history of hydrocephalus, microcephaly, seizure disorder,
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    encephalomalacia, chronic lung disease, developmental delays, and cerebral
    palsy.     Id.   Dr. Turchi noted that Decedent also required the use of a
    gastrostomy tube to be fed and was non-verbal. Id. Dr. Turchi opined that
    it was inappropriate to expect a ten-year-old child to provide this type of
    specialized medical care and supervision. Id. at 24-25.
    Dr. Lindsay Simon, an Associate Medical Examiner for the Philadelphia
    Medical Examiner’s Office and expert in determining cause of death, testified
    that she performed an autopsy on Decedent on October 10, 2020. Id. at 32,
    34-35. Dr. Simon concluded from her autopsy that Decedent’s cause of death
    was aspiration pneumonia related to his cerebral palsy, and stated that this
    would have taken “days, if not a week or more” to result in death. Id. at 41,
    48. Dr. Simon opined that leaving Decedent in the primary care of a ten-year-
    old for an extended period of time would have been the type of neglect that
    could have contributed to Decedent’s death and emphasized that “is not a
    standard of medical care.” Id. at 43.
    The juvenile court found the testimony of DHS’s witnesses credible and
    elected not to believe Father. See id. at 127. We decline to disturb these
    findings.
    Accordingly, we discern no abuse of discretion on the part of the juvenile
    court in concluding that Father committed “child abuse” pursuant to Section
    6303(b.1) of the CPSL.
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    Father’s next argues that the juvenile court erred and/or abused its
    discretion in adjudicating D.A.-S. dependent.2 Appellant’s brief at 17.
    Our standard of review in child dependency cases is as follows:
    In reviewing an order in a dependency matter, our
    standard of review requires us to accept the findings
    of fact and credibility determinations of the trial court
    if they are supported by the record, but does not
    require the appellate court to accept the lower court’s
    inferences or conclusions of law. Accordingly, we
    review for an abuse of discretion.
    In re Interest of N.B., 
    260 A.3d 236
    , 245 (Pa.Super. 2021) (citation and
    internal quotation marks omitted).
    Dependency proceedings are governed by the Juvenile Act, 42 Pa.C.S.A.
    §§ 6301–6375. The Juvenile Act defines “dependent child,” in relevant part,
    as follows:
    “Dependent child.” A child who:
    (1) is without proper parental care or control,
    subsistence, education as required by law, or other
    care or control necessary for his physical, mental, or
    emotional health, or morals. A determination that
    there is a lack of proper parental care or control may
    be based upon evidence of conduct by the parent,
    guardian or other custodian that places the health,
    safety or welfare of the child at risk, including
    evidence of the parent's, guardian’s or other
    custodian’s use of alcohol or a controlled substance
    that places the health, safety or welfare of the child at
    risk[.]
    42 Pa.C.S.A. § 6302.
    ____________________________________________
    2   The record reflects that Father is the biological father of D.A.-S. only.
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    In order to adjudicate a child dependent, the juvenile court must
    determine that the above definition has been met by clear and convincing
    evidence. In re A.B., 
    63 A.3d 345
    , 349 (Pa.Super. 2013). The determination
    “of whether a child is lacking proper parental care and control so as to be a
    dependent child encompasses two discrete questions: whether the child
    presently is without proper care and control, and if so, whether such care and
    control are immediately available.” In re D.A., 
    801 A.2d 614
    , 619 (Pa.Super.
    2002) (en banc).
    Instantly, the juvenile court adjudicated D.A.-S. dependent based upon
    Father’s “present inability” to provide eight-month-old D.A.-S with proper
    parental care and control, referencing Father’s failure to provide proper care
    to D.A.-S’s four-year old sibling, Decedent, which ultimately resulted in his
    death.   Notes of testimony, 6/25/21 at 128-129; see also juvenile court
    opinion, 11/2/21 at 13-14. Following a thorough review of the record, we find
    no abuse of discretion in this regard.
    As discussed, the record reflects that there was clear and convincing
    evidence that Decedent was the victim of child abuse after Father left ten-
    year old N.B.-W alone to care for him 10 to 12 hours a day and up to three to
    four days a week, with full knowledge of his substantial medical needs.
    This Court has long recognized that a parent’s failure to provide proper
    parental care and control to a child may necessitate an adjudication of
    dependency for the child’s siblings where the parental failure places the
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    siblings at risk of physical, mental or emotional harm. In re G.T., 
    845 A.2d 870
    , 874 (Pa.Super. 2004). Likewise, a finding of child abuse against one
    sibling may support a juvenile court’s adjudication of dependency for another
    sibling, even if they were not the victim of abuse themselves. In re R.P., 
    957 A.2d 1205
    , 1213 (Pa.Super. 2008).
    Based on the foregoing, the record supports the juvenile court’s
    conclusion that D.A.-S. is presently “without proper parental care or control….”
    42 Pa.C.S.A. § 6302. Father’s challenge to the contrary is clearly without
    merit.
    Father next argues that the juvenile court erred and/or abused its
    discretion by finding that aggravated circumstances existed in this case.
    Father’s brief at 16. We disagree.
    The Juvenile Act defines the term “aggravated circumstances,” in
    relevant part, as circumstances in which “[t]he child or another child of the
    parent has been the victim of physical abuse resulting in serious bodily
    injury, sexual violence or aggravated physical neglect by the parent.” 42
    Pa.C.S.A. § 6302(2) (emphasis added).         “Aggravated physical neglect,” in
    turn, is defined by the Juvenile Act as “[a]ny omission in the care of a child
    which results in a life-threatening condition or seriously impairs the child’s
    functioning.” Id. at § 6302.
    [T]his Court has recognized that a [juvenile] court
    need not find the existence of aggravated
    circumstances as to a particular party; rather, it
    merely must determine whether they are present in
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    the case. This is ... because the focus is not on the
    rights of the [p]arents; instead, the children’s safety,
    permanence, and well-being take precedence.
    Int. of L.V., 209 A.3d at 418 (citation and internal quotation marks omitted).
    Here, our review of the record reveals that the evidence presented
    during the dependency hearing clearly supported the juvenile court’s finding
    of aggravated circumstances under Section 6302(2). See notes of testimony,
    6/25/21 at 129. It is undisputed that D.A.-S’s brother, Decedent, was the
    victim of aggravated physical neglect after he was left by Father without
    proper parental care and supervision for extended periods of time, culminating
    in Decedent’s death. Id. at 66-68. Accordingly, no relief is due.
    In his final claim, Father contends that the juvenile court violated his
    due process rights by failing to conduct an in-person adjudicatory hearing
    instead of a virtual hearing. Father’s brief at 18-20.
    Our review of Father’s brief reflects that he has failed to cite to the place
    in record where specifically objected to the virtual hearing or requested an in-
    person proceeding, and our independent review has found none. Accordingly,
    Father has waived this claim. See Pa.R.A.P. 302(a) (providing for waiver of
    issues not first raised in lower court); Int. of L.V., 209 A.3d at 418 (stating,
    “[i]n order to preserve an issue for appellate review, a party must make a
    timely and specific objection at the appropriate stage of the proceedings
    before the trial court. Failure to timely object to a basic and fundamental error
    will result in waiver of that issue.” (citation omitted)).
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    For all the foregoing reasons, we affirm the June 25, 2021 order of the
    juvenile court.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/23/2022
    - 14 -
    

Document Info

Docket Number: 1351 EDA 2021

Judges: Stevens, P.J.E.

Filed Date: 2/23/2022

Precedential Status: Precedential

Modified Date: 2/23/2022