In the Interest: J.H., Appeal of: J.H. ( 2023 )

J-A06042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.H. FATHER :
:
:
:
:
: No. 961 WDA 2022
Appeal from the Order Entered August 4, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): No. CP-65-45-22
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 15, 2023
J.H. (Father) appeals from the August 4, 2022 order of the Court of
Common Pleas of Westmoreland County (trial court) designating him as a
perpetrator of child abuse against J.H. (Child) pursuant to the Child Protective
Services Law (CPSL).1 We affirm.2
I.
We glean the following facts from the certified record. The
Westmoreland County Children’s Bureau (WCCB) took emergency protective
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* Retired Senior Judge assigned to the Superior Court.
1 23 Pa.C.S. §§ 6301 et seq.
2 H.J. (Mother) has also appealed the child abuse determination entered
against her at the same proceeding. We address her appeal at 960 WDA 2022.
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custody of Child on April 1, 2022, after he had been hospitalized for severe
malnourishment. It subsequently filed for dependency and sought a finding
of abuse against Mother and Father.3 Mother and Father stipulated to
dependency but opposed the finding of abuse. Upon Mother’s request, the
trial court also took judicial notice of the emergency declarations issued by
the governor in response to the covid-19 pandemic.
WCCB called Dr. Adelaide Eichman (Dr. Eichman) from the Division of
Child Advocacy at Children’s Hospital of Pittsburgh to testify regarding their
treatment of Child. Child was admitted to the hospital on March 24, 2022,
and was diagnosed with severe failure to thrive. He was 12 months old,
weighed 15.1 pounds and had developmental delays. A large flat spot on the
back of his head caused abnormal development in his face. His hair was
thinning and matted on the back of his head and he had developed lanugo, a
very fine hair, on his back. He was unable to sit up on his own and his weight
was below the third percentile for children his age. A skeletal survey revealed
he had osteopenia, or thinning of his bones, and brain imaging showed he had
lost brain volume. These conditions result from chronic malnutrition or
starvation.
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3WCCB filed dependency petitions for four of Mother and Father’s children.
Only the finding of abuse as to Child is at issue in this appeal.
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Dr. Eichman testified that the cause of Child’s medical problems was
chronic underfeeding for a period of months, and she could not say whether
the loss of brain volume would be reversible. She opined that Child had
suffered from neglect, and said that once he was fed regularly, he began
gaining weight. When he was discharged from the hospital after four days,
he weighed 16.7 pounds and by mid-April, he weighed 19 pounds.
Upon speaking to Mother, Dr. Eichman learned that she fed Child
powdered milk instead of powdered formula, which is not recommended for
children under one year old. Mother said she fed Child two to four ounces of
milk every two to four hours, except overnight, which was not consistent with
Child’s severe malnourishment. Mother told Dr. Eichman that she had not
been able to obtain medical insurance for Child after moving to Pennsylvania.
Dr. Eichman testified that she did not believe insurance was necessary to
schedule an early intervention evaluation for a child or for a child to be seen
in the emergency room. The hospital additionally has employees who could
have helped Mother and Father enroll Child in medical insurance if necessary.
Jarrett Dorazio (Dorazio), a physician assistant who evaluated Child
prior to his hospitalization, testified that his office does not require insurance
to see a patient, and that they direct patients without insurance to state
resources where they can obtain it. Dorazio first saw Child on March 10, 2022,
for a well visit that Mother and Father were required to schedule due to WCCB
involvement with one of their other children. Dorazio was concerned about
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Child’s muscle tone, neurologic and gross and fine motor development. Child
could not sit up or push up from his stomach on his own, while most children
at his age could walk. He was not using words and would stare at the wall
without reacting to noises or Dorazio’s voice. His arms and hands remained
in a clenched position and would return to that stance if Dorazio attempted to
move them. At the first visit, Child weighed 14.6 pounds. Dorazio diagnosed
Child with failure to thrive, low muscle tone and neglect, and recommended
that Mother have him evaluated by the Children’s Institute and then return for
a follow-up visit. He recommended applying for Women, Infants and Children
(WIC) benefits, and Mother said that she was unable to get WIC and that
formula was expensive. Dorazio testified that he did not make a ChildLine
report after Child’s first visit because he believed Child had not been seen by
a doctor in approximately ten months and he wanted to give Mother and
Father a chance to make a good faith effort at complying with his
recommendations.
Dorazio saw Child for a follow-up visit on March 24, 2022, and he had
gained approximately half-a-pound. Due to the low weight gain, Dorazio
recommended that Mother admit Child into the hospital. Child gained weight
more rapidly after his hospitalization and at a well visit on April 15, 2022, he
weighed 19.10 pounds. At his most recent visit in May 2022, Child was able
to sit up with some assistance, was making babbling noises and was
interacting with his surroundings and reaching for his toes and ears.
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Rachel Menhorn (Menhorn), a school nurse who worked with one of
Mother and Father’s other children, testified that she provided them with
written information regarding the Children’s Health Insurance Program (CHIP)
and the online application process on two occasions. She also spoke with
Mother directly about CHIP multiple times. Mother did not ask for any help
with the application but told Menhorn in January 2022 that the state was
giving her the “runaround.” N.T., 5/25/22, at 119.
Colleen Flynn (Flynn) of the Children’s Institute testified that she opened
a case with the family in the Star Babies program, which provides an intensive
in-home family services specialist. She began working directly with the family
in mid-March and first saw Child shortly before his hospitalization. She said
he was emaciated and that his appearance was shocking. Mother told Flynn
that Child had recently been to the doctor but did not consider Dorazio’s
recommendations urgent. She said she did not have time to make phone calls
for Child’s care. She had scheduled an appointment with a gastroenterologist
but had not followed up with a nutritionist or feeding specialist. Flynn said
that Child had a blank stare, lanugo on his back, and his hands and fingers
were curled and stiff. He did not smile or make eye contact and would cry
when he was touched.
After Child was discharged from the hospital, Flynn began visiting the
family to weigh Child every day, with the understanding that if he lost weight,
WCCB would intervene. The weigh-ins took place as planned for several days
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but Mother was missed the appointment on April 1, 2022. She texted Flynn
throughout the day to push the visit back and said that she was running an
errand in Pittsburgh. Flynn was not able to complete the visit and WCCB took
custody of the children that day. Flynn opined that Mother did not understand
the urgency of Child’s condition. Flynn spoke with Father once on the phone
prior to Child’s hospitalization, and he wanted to know why the doctor wanted
to send Child to the hospital.
Amanda Karas (Karas), a caseworker for WCCB, opened a case with the
family in January 2022 following a referral related to one of Father’s other
children. At that time, Mother and Father were living with their four children
and another adult couple with two children. Mother requested parenting
services and services for children with special needs because she was
concerned about the development of Child and his sister. Karas did not
perform a home visit with the family until after Child was released from the
hospital at the end of March, but prior to that she was in contact with the Star
Babies staff about the family.
Karas learned that the last time Child had seen a doctor was in July 2021
when the family still lived in Oregon. Mother and Father reported that they
had taken Child to a local emergency room for a cough in July 2021, but the
hospital’s records did not confirm any visit had taken place. Mother and
Father also told Karas that they had not taken Child to the doctor because
they did not have health insurance. When WCCB became involved with the
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family, Mother was the primary caregiver. They had previously left the
children with one of the other adults in the household while Mother and Father
worked, but Mother quit her job in October because they were concerned that
the other adult was not providing appropriate care.4 Father continued to work
full-time.
After Child’s release from the hospital, Mother and Father attended an
evaluation to qualify for WIC. They told Karas that they had previously
received WIC benefits, but WIC staff reported that they had no involvement
with the family outside of the first evaluation. Mother and Father told Karas
that WIC had required regular weight checks that were too strenuous so they
discontinued the program. WIC staff confirmed that recipients usually have a
monthly evaluation that includes a weigh-in.
Mother and Father were able to successfully obtain health insurance
shortly before Karas began working with the family at the end of March.
Mother reported to Karas that she had difficulty applying for insurance through
the state and providing all the necessary documentation. Mother submitted
exhibits at the hearing showing that she applied for health insurance through
the Pennsylvania DHS in July and August 2021, but the applications were
rejected because she did not provide required records. Mother told Karas that
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4This adult continued to live with the family and help with caretaking into
2022. She was eventually reported for abuse of one of the other children via
ChildLine and faced criminal charges. She then moved out of the home.
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she attempted to send in documents and speak to DHS on the phone but was
not able to obtain insurance.
Joe Bowles (Bowles), one of the individuals who lived with Mother and
Father, testified on their behalf. He said Mother quit her job in October 2021
to stay home, though she earned money baking cookies at home and
delivering them to customers. He said that Child had difficulty with formula
and was spitting it up a lot, but Mother switched formulas and that helped the
issue. He said Mother and Father applied for health insurance and called DHS
multiple times about why their applications were rejected. He further testified
that Mother called providers about obtaining health insurance for the children
but it was very expensive. He said Mother did take Child to the hospital at
one point for his cough.
Following the hearing, the trial court adjudicated Child dependent and
entered an order determining Father perpetrated abuse pursuant to the CPSL.
Father timely appealed and he and the trial court have complied with Pa.
R.A.P. 1925.
II.
Father raises two issues on appeal: whether the trial court abused its
discretion in finding that WCCB presented clear and convincing evidence that
he had abused Child and whether the trial court abused its discretion by failing
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to consider the shutdowns related to the covid-19 pandemic as an exception
to the finding of abuse under the CPSL.5
A.
Father first argues that the evidence at the dependency hearing did not
establish that he acted intentionally, knowingly or recklessly to perpetrate
abuse against Child. He points out that the family attempted to obtain health
insurance to seek treatment for Child but were unable to do so. He points out
that Dorazio and Dr. Eichman did not think it was necessary to file a ChildLine
report and released Child back to him and Mother on two occasions. He argues
that he was not aware of any risk to Child, and that he and Mother cooperated
with WCCB and Star Babies when they opened cases with the family. They
fed Child powdered milk for financial reasons and Dorazio opined the milk was
appropriate for a 12-month-old. Thus, he concludes that he did not act
intentionally, knowingly or recklessly in caring for Child.
A determination that a person perpetrated abuse against a child must
be supported by clear and convincing evidence. Interest of T.G., 208 A.3d
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The standard of review in dependency cases requires an appellate
court 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.
Interest of K.D., 237 A.3d 566, 568 (Pa. Super. 2020) (citation omitted).
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487, 490 (Pa. Super. 2019). The definition of child abuse under the CPSL
includes intentionally, knowingly or recklessly causing “serious physical
neglect of a child.” 23 Pa.C.S. § 6303(b.1)(7). 6 It defines serious physical
neglect as follows:
Any of the following when committed by a perpetrator that
endangers a child’s life or health, threatens a child’s well-being,
causes bodily injury or impairs a child’s health, development or
functioning:
***
(2) The failure to provide a child with adequate essentials of
life, including food, shelter or medical care.
23 Pa.C.S. § 6303(a). The statute further defines “recklessly” with reference
to the Crimes Code’s definition of the term:
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.
Id. (citing 18 Pa.C.S. § 302). Severe neglect resulting in failure to thrive can
be the basis for a finding of abuse under subsection 6303(b.1)(7). Interest
of T.G., supra, at 494-95 (finding clear and convincing evidence of severe
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6 The trial court’s order does not specifically identify the subsection of the
definition of child abuse that it found WCCB had established by clear and
convincing evidence. However, it did state that “neglect” by Mother and
Father “caused severe malnutrition” of Child. Order, 8/4/22 at 3.
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physical neglect when mother missed medical appointments for child and did
not comply with treatment recommendations, resulting in failure to thrive).
The record overwhelmingly supports the trial court’s determination that
Child suffered serious physical neglect by Father’s actions or inactions. The
professionals who evaluated Child or visited with the family in their home
uniformly described Child as emaciated, low-energy, with low muscle tone and
as being significantly developmentally delayed compared to the average 12-
month-old child. At 15.1 pounds, Child’s weight was well below the third
percentile for children of his age, and he was unable to support his head while
being held by Mother or sit up on his own. He had a flat spot on the back of
his head that resulted in disfiguration to his facial features. He had not
reached average benchmarks, such as walking or crawling, and did not make
eye contact or typical verbalizations for a child his age. His condition was
immediately apparent to the naked eye of the individuals who evaluated him.
Moreover, further testing revealed that he had lost brain volume and
experienced osteopenia and lanugo. All of these conditions are caused by
malnutrition, and Dr. Eichman was unable to say whether the loss of brain
volume would ultimately be reversible. After enumerating the many medical
and developmental issues Child was exhibiting, Dr. Eichman testified that he
had been diagnosed with failure to thrive and had been chronically underfed
for a period of months. Once he received adequate nutrition, he had no
trouble gaining weight. She concluded that “essentially from a medical
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standpoint, the baby just needed to be fed.” N.T., 5/25/22, at 39. She further
stated, “I do want to underscore that neglect is not a benign process. It is
not any better or worse than physical abuse, for instance.” Id. at 56.
This evidence amply supports the trial court’s conclusion that Father
“consciously disregard[ed] a substantial and unjustifiable risk” to his health
and well-being by failing to feed him adequately for an extended period of
time. 18 Pa.C.S. § 302; 23 Pa.C.S. § 6303(a). While the testimony showed
that Mother was primarily responsible for Child during the day and attended
to the medical appointments and insurance applications, Father lived in the
home and would have observed Child’s condition daily. The neglect was
immediately apparent to medical and WCCB professionals upon seeing Child,
and though it would have been equally apparent to Father, he took no steps
to rectify the situation or seek care for Child. Additionally, even though
Dorazio testified that powdered milk was appropriate for a 12-month-old child,
he said that it did not contain the nutrients and minerals necessary to a
younger child. Child was chronically underfed for months prior to his first
appointment with Dorazio, well before he reached 12 months of age.
While Child was released to Mother and Father’s care after his first well
visit and his hospitalization, this was only after they received counseling on
the next steps for his care and agreed to work with the Star Babies project
and comply with daily weigh-ins to monitor his progress. Less than a week
after his release from the hospital, Mother missed one of the required weigh-
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ins, resulting in his removal. Finally, the medical professionals testified that
Child would have received emergency care regardless of whether he had
insurance. Thus, the record supports the trial court’s conclusion that Father’s
failure to act was, at minimum, reckless. No relief is due.
B.
Next, Father argues that the trial court erred by failing to consider
environmental factors, namely, lack of health insurance and the covid-19
shutdowns, as rendering Child’s condition outside of his control. He highlights
that Pennsylvania was under a disaster declaration in July 2021 that precluded
Mother from visiting DHS offices to obtain health insurance for Child. He also
contends that the family was forced to feed Child powdered milk because they
could not afford formula, which was beyond their control.
The CPSL mandates that certain environmental factors outside of a
parent’s control cannot support a finding of abuse:
No child shall be deemed to be physically or mentally abused
based on injuries that result solely from environmental factors,
such as inadequate housing, furnishings, income, clothing and
medical care, that are beyond the control of the parent. . . .
23 Pa.C.S. § 6304(a).
Because Father worked full-time, Mother was primarily responsible for
applying for health insurance, WIC and SNAP benefits for the family. The
record is devoid of any evidence that the covid-19 pandemic prevented Mother
from obtaining medical care for Child or from feeding him appropriately. While
Mother requested that the trial court take judicial notice of the governor’s
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covid-19 disaster declarations, she presented no evidence that the shutdowns
affected her ability to obtain health insurance or medical care for Child. To
the contrary, the documentation she submitted into evidence revealed that
she began the online process of applying for health insurance and other
benefits through the state in July 2021. She promptly received notice that
her application had been received and that she needed to submit additional
documentation either in person, online or by mail or fax. She was also
required to complete an in-person interview.
Mother was then notified less than a week later that she qualified for
expedited Supplemental Nutrition Assistance Program (SNAP) benefits
amounting to $1,393 through the end of August 2021, but still needed to
provide additional documentation. She did not complete her required
interview by July 30, 2021, and was notified that she would need to do so by
August 13, 2021. She then received a second notification that she needed to
provide employment and income verification documents to qualify for cash
assistance, medical assistance and SNAP. When she did not provide the
requested documents, DHS notified her that her request was denied and that
she could appeal that decision.
Mother started the process anew in September 2021 and was again
notified that she needed to provide additional documentation. She was also
notified that her SNAP benefits, which she was apparently still receiving, would
increase from $929 to $992 monthly in October. She provided no further
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documentation related to her second application for benefits, but the record
is undisputed that Child did not have health insurance until March 2022.
Father submitted no evidence that he attempted to obtain health insurance or
benefits for the family or that he intervened when Mother failed to complete
the applications. Rather, it appears that Father sat passively by while Mother
attended to the application process and took no steps to obtain medical care
for Child as his health deteriorated.
Child attended his first wellness appointment with Dorazio in March 2022
only after WCCB had become involved with the family and required check-ups
for all of the children. Dorazio testified that his office was not closed to the
public between July 2021 and March 2022, that he was able to see patients
who did not have insurance, and that the office employed individuals who
would help patients with insurance inquiries. Finally, Dr. Eichman testified
that Child would have been treated in any hospital emergency room even
without insurance, and his condition was so severe as to merit emergency
treatment. Thus, the record reveals that there were available avenues for
Father to obtain medical care for Child, but he chose not to do so.
While the family struggled to make ends meet and allegedly fed Child
powdered milk because formula was too expensive, Mother and Father also
told Karas that they discontinued their WIC benefits because they considered
the monthly evaluations to be too strenuous. Additionally, documentation
showed that their application for SNAP benefits was approved at least through
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October and they simply needed to submit documentation to DHS to continue
to receive assistance. Put simply, the record shows that assistance was
available to Father if he had followed through with DHS to obtain it. Thus, we
cannot conclude that the family’s finances or the disaster declarations related
to the covid-10 pandemic constituted environmental factors preventing Father
from obtaining medical care or appropriately feeding Child. His second issue
merits no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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