In the Int. of: A.B., Appeal of: S.S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.S., MOTHER :
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: No. 3353 EDA 2019
Appeal from the Order Entered November 5, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000402-2019
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JULY 7, 2020
S.S. (“Mother”) appeals the November 5, 2019 order of disposition
finding that she abused her daughter, A.B., as the term is defined in 23 Pa.C.S.
§ 6303. We affirm.
A.B. was born in January 2014. During February 2019, the Philadelphia
Department of Human Services (“DHS”) became involved with this family due
to a report of medical neglect. N.T., 6/20/19, at 16. A.B. had previously been
diagnosed with hypopituitarism, hypocalcemia, hypoglycemia, and
hypoparathyroidism. Id. at 28-30. These conditions require life-essential
medication and A.B. can experience seizures due to the failure to comply with
the established medication regimen. Id. at 31, 33, 60-61. Specifically, A.B.
requires thyroid hormone, growth hormone, hydrocortisone, cholecalciferol,
and calcium carbonate. Id. at 31-32, 36, 73-75. Further, to combat against
the onset of seizures when A.B.’s health is under stress, such as illness, fever,
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vomiting, or surgery, a higher “stress dose” of hydrocortisone is required. Id.
at 31-32.
Prior to the February 2019 hospitalization that is the genesis of this
appeal, A.B. was admitted to St. Christopher’s Hospital for Children (“St.
Christopher’s”) in April, May, and August 2018, for a viral infection with mild
low blood glucose, a urinary tract infection, and a seizure attributed to low
calcium, respectively. During this period, Elizabeth Suarez, M.D., A.B.’s
treating pediatric endocrinologist at St. Christopher’s, trained then-twenty-
three-year-old Mother to administer the correct dosages of the necessary
medications. Specifically, Dr. Suarez reviewed A.B.’s medications with Mother
during the April and August hospitalizations. N.T., 6/20/19, at 37-40. A
follow-up discussion was scheduled for September 2018, but Mother failed to
attend that review. Id. at 40-41.
A.B. returned to St. Christopher’s on February 8, 2019, because of a
hypoglycemic seizure, due to low blood glucose, and hypocalcemia, which is
a condition caused by low calcium. N.T., 11/5/19, at 17-18; N.T., 6/20/19,
at 30, 37-39, 46-47, 49; see also Exhibits DHS-4, DHS-5. The child was
unresponsive at the home and had to be revived by paramedics who
administered an emergency dose of medication. It was apparent to the
medical staff that Mother had not administered the appropriate doses of
medications to A.B. to counter the physical stress associated with abdominal
pain, vomiting, and loose stools that plagued her daughter in the days prior
to the February admission. See N.T., 11/5/19, at 18, 28; N.T., 6/20/19, at
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46, 63; see also Exhibits DHS-2, DHS-4, DHS-5, DHS-6. For example,
Mother admitted giving A.B. less than the recommended daily amount of
hydrocortisone and discontinued calcitriol and calcium carbonate. N.T.,
11/5/19, at 18-19, 28. Indeed, Ghada Naji, M.D., the emergency department
doctor who treated A.B. on February 8, 2019, subsequently testified that it
was apparent that Mother was not medicating A.B. appropriately. Id. at 29-
30.
On February 11, 2019, DHS generated a Child Protective Service (“CPS”)
report alleging that Mother perpetrated child abuse against A.B. by failing to
provide medical treatment or care. Id. at 16-17; see also Exhibit DHS-2.
The CPS report was indicated, finding substantial evidence to support the
allegation that Mother failed to provide medical treatment or care and that the
child suffered substantial pain, injury, and impairment due to abuse or
neglect.1 N.T., 11/5/19, at 38; N.T., 6/20/19, at 23; see also Exhibit DHS-
6. Upon her discharge from the hospital on February 11, 2019, A.B. was
permitted to return home to Mother’s care under the supervision of the
maternal grandmother and maternal aunt, who signed the agency’s safety
plan that facilitated reunification. DHS also provided the family in-home
services and nursing.
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1 An “indicated” designation refers to an agency’s finding of substantial
evidence of abuse based upon available medical evidence, investigation, or
the admission of a perpetrator. 23 Pa.C.S. § 6303.
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On March 7, 2019, DHS filed a dependency petition that included
allegations of abuse pursuant to 23 Pa.C.S. § 6303. Nine months later, the
agency withdrew the petition because Mother successfully remediated the
underlying medication issues. DHS explained its decision to the juvenile court
as follows, “Your Honor, based upon the compliance for the past nine months
with both In-home Services and DHS Nursing, . . . the dependency issues
have been remediated so the petition before the [c]ourt, [can be] withdrawn.”
N.T., 11/5/19, at 64.
Notwithstanding the eventual resolution of the dependency proceeding
based upon Mother’s subsequent remedial conduct, the court held additional
hearings on June 20, 2019, and November 5, 2019, to resolve the underlying
allegations of abuse stemming from the February 2019 CPS report.2 DHS
presented, inter alia, the testimony of Judith Tertus, the CUA case manager,
Terez Hunter, DHS Supervisor for Investigation, Dr. Suarez, who testified as
an expert in pediatric endocrinology, and Dr. Naji. Mother was present and
represented by counsel.
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2 The finding of child abuse is not contingent upon an accompanying
adjudication of dependency. In re Interest of J.M., 166 A.3d 408, 422
(Pa.Super. 2017) (“[N]othing in the Juvenile Act . . . conditions a finding of
child abuse in such a dependency proceeding on a finding that a child is
dependent.”). While Mother does not contest this proposition, the child
advocate and guardian ad litem challenge the juvenile court’s authority to
enter a finding of abuse absent a concomitant adjudication of dependency.
Since the issue was not presented before the juvenile court, it is waived.
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).
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On November 5, 2019, the juvenile court entered its finding that Mother
perpetrated child abuse as defined by 23 Pa.C.S. § 6303 of the Child Protective
Services Law (“CPSL”). Accordingly, the CPS report was founded.3 Mother
filed a timely notice of appeal along with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother presents the following issues for our review:
1. Did the trial court err as a matter of law and abuse its discretion
when it based its finding of child abuse under the Child Protective
Services Law on expert medical testimony which failed to satisfy
the legal standard of knowing, intentional and reckless as required
by 23 Pa.C.S. [§ 6303]?
2. Did the trial court err as a matter of law and abuse its discretion
when it made a finding of child abuse where [DHS] failed to prove
by clear and convincing evidence that the child was abused as
defined by 23 Pa.C.S. [§ 6303]?
Mother’s brief at 8.
We review the juvenile court’s determination for an abuse of discretion.
In re Interest of J.M., 166 A.3d 408 (Pa.Super. 2017). As the alleged abuse
occurred in February 2019, the current version of CPSL, which became
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3 The CPSL defines a founded report, in pertinent part, as:
A child abuse report involving a perpetrator that is made pursuant
to this chapter, if any of the following applies:
(1) There has been a judicial adjudication based on a finding
that a child who is a subject of the report has been abused
and the adjudication involves the same factual
circumstances involved in the allegation of child abuse.
23 Pa.C.S. § 6303(a).
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effective on June 12, 2018, controls our review. The statute 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.
23 Pa.C.S. § 6303(b.1) (footnote omitted). Serious physical neglect includes,
inter alia, “[t]he failure to provide a child with adequate essentials of life,
including food, shelter or medical care . . . 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[.]” 23
Pa.C.S. § 6303(a).
In In the Interest of J.R.W., 631 A.2d 1019, 1023 (Pa.Super. 1993),
this Court stressed that the juvenile court’s determination of whether child
abuse occurred must be supported by clear and convincing evidence. Id.
[T]he clear and convincing evidence necessary to find
dependency, [sic] has been imposed by the Legislature as the
standard which the Juvenile Court must apply in deciding abuse
cases. . . . There is no conflict, constitutional or otherwise, with
the clear and convincing evidence standard imposed by the Act to
establish child abuse.
Id. see also In re L.Z., supra at 1174.
Mother argues that the juvenile court erred in adjudicating her a
perpetrator of abuse because DHS failed to demonstrate that her behavior
was knowing, intentional, or reckless. Mother’s brief at 15-21. She asserts
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that “reasonable consideration of the evidence produced at trial suggests” that
her failure to administer the correct dosages of medicine was the result of
negligence rather than knowing, intentional, or reckless conduct, and is
therefore insufficient to support a finding of child abuse. Id. at 20. Critical
to Mother’s argument is the fact that St. Christopher’s Hospital for Children,
with full knowledge and access to A.B.’s medical history, released A.B. to her
care. Id. at 17. Additionally, Mother highlights testimony that A.B.’s
medication regimen was complicated and that there were concerns as to
Mother’s understanding of the appropriate dosage and its consequences. Id.
Mother also relies upon Dr. Suarez’s testimony that, had Mother been
persistently non-compliant with A.B.’s medication regimen, A.B. would have
been hospitalized much more frequently. Id. Essentially, Mother argues that
the Commonwealth did not establish the mens rea for child abuse.
The CPSL refers to the Crimes Code’s definition of knowing as outlined
in 18 Pa.C.S. § 302(b)(2), which provides as follows:
(2) A person acts knowingly with respect to a material element
of an offense when:
(i) if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his conduct, he
is aware that it is practically certain that his conduct
will cause such a result.
18 Pa.C.S. § 6303(b)(2).
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At the conclusion of the hearing on November 5, 2019, the juvenile court
summarized its conclusion by stating that, notwithstanding Mother’s
understanding of her daughter’s condition, access to medical advice from the
staff at St. Christopher’s, and the prior successful administration of proper
dosages of the medication, Mother knowingly reduced her child’s medication,
thereby placing her daughter’s life in danger by administering less than the
required amount. N.T., 11/5/19, at 61-62.
Our review of the certified record belies Mother’s contention that the
evidence was insufficient to sustain the finding by clear and convincing
evidence that Mother’s actions constituted child abuse. Indeed, contrary to
Mother’s protestations, the certified record supports the juvenile court’s twin
findings that A.B. was the victim of abuse by serious physical neglect as
defined by the CPSL and that Mother knowingly perpetrated the abuse by
failing to administer the correct doses of medication to A.B..
Dr. Suarez, A.B.’s treating endocrinologist, testified that while A.B.’s
condition is normally controlled by the daily administration of various doses of
medication, if A.B.’s health is placed under stress, such as fever, surgery, or
vomiting, she requires a higher dose of hydrocortisone, typically by injection.
N.T., 6/20/19, Id. at 29-32, 36. While Dr. Suarez stated that she had not
previously found Mother noncompliant with the administration of A.B.’s
medication, she conceded that improper stress doses contributed to two of
A.B.’s hospitalizations during 2018, and that the incidents prompted the
hospital staff to review with Mother A.B.’s medication regimen during April,
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May, and August 2018. Id. at 37-39, 66, 73. Likewise, Mother was able to
contact Dr. Suarez or the endocrinology staff at St. Christopher’s with
questions or concerns as to medications, but she did not. Id. at 40. In sum,
Dr. Suarez, opined to a reasonable degree of medical certainty that the
hypoglycemic seizure would not likely have occurred had Mother provided A.B.
with the correct amount of her medications. Id. at 49-50, 62.
Similarly, Dr. Naji, the doctor who treated A.B. on February 8, 2019,
testified that Mother admitted to the hospital staff that she had given A.B. less
than the prescribed maintenance dose of hydrocortisone, and that she had
discontinued A.B.’s prescribed calcium medication altogether. N.T., 11/5/19,
at 19, 29-30. She added that Mother reduced the prescribed maintenance
dose of hydrocortisone and neglected to administer the stress doses despite
the fact that A.B. exhibited stress symptoms approximately four days before
her February 2019 hospitalization for the seizure. Id. at 19-20, 21-22.
DHS Supervisor Terez Hunter testified about DHS’s investigation of the
February 11, 2019 CPS report. In sum, she explained to the juvenile court
that DHS discovered “a pattern that the medication was not being properly
administered or the prescriptions were not being properly filled or kept
current.” See N.T. 11/5/19 at 45-46. As it relates to the decision to permit
A.B. to return home following her discharge from St. Christopher’s, Ms. Hunter
explained that, after consulting with the hospital social worker and the DHS
nurse, it was determined that the safety plan with in-home services would be
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sufficient because the maternal grandmother and aunt would help Mother
monitor and administer all medications. N.T., 6/20/19, 24-25.
Based on the foregoing evidence, the juvenile court found clear and
convincing evidence that A.B. was the victim of child abuse by serious physical
neglect as a result of Mother’s knowing deprivation of medication. Upon
careful review of the record, we discern no abuse of discretion with the
juvenile court’s finding of abuse.
First, it cannot be gainsaid that Mother failed to provide then-five-year-
old A.B. with the adequate essentials of life, i.e., proper medical care, which
endangered the child’s well-being. The certified record bears out that Mother
failed to provide A.B. with the correct doses of hydrocortisone and that the
resulting hypoglycemic seizure, which required her to be revived by
paramedics before being transported to the hospital, would not likely have
occurred had Mother provided A.B. with the right amount of medication. The
failure to provide adequate medical care is tantamount to serious physical
neglect insofar as it threatened A.B.’s life. See Interest of T.G., 208 A.3d
487, 495-96 (2019 Pa. Super 2019) (finding serious physical neglect where
mother failed to provide daughter prescribed fortified diet that was essential
to her wellbeing). Hence, the record confirms that A.B. suffered serious
physical neglect when Mother failed to provide her with prescribed medication
that was essential to her life, and resulted in a hypoglycemic seizure.
The record also sustains the court’s finding that Mother acted knowingly.
In the nine months prior to the hospitalization that is the genesis of this
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appeal, A.B. twice was hospitalized due to Mother administering incorrect
doses of medication. Moreover, the hospital staff reviewed the proper dosages
with Mother as recent as six months before the instant occurrence, yet Mother
neglected to attend the follow-up review during September 2018. Mother
never voiced any concerns with, or confusion about, A.B.’s medication.
Notwithstanding this training and knowledge, it was apparent to the medical
staff that Mother had not administered the appropriate doses of medications
to A.B. prior to her February 2019 admission. In fact, Mother admitted to the
hospital staff that she had discontinued one medication and gave her daughter
less than the prescribed amount of another. The foregoing facts sustain the
juvenile court’s finding that Mother acted knowingly pursuant to §302(b)(2),
i.e., that it was practically certain that Mother’s conduct in providing A.B. less
then than the prescribed amount of medication would cause the expected
result.
Furthermore, we reject Mother’s contention that the finding of abuse is
erroneous because neither Dr. Suarez nor Dr. Naji opined “within a reasonable
degree of medical certainty that [M]other’s conduct rose to the level of
intentional, knowing, or reckless child abuse.” See Mother’s Brief at 20-21.
Stated plainly, a formal diagnosis of child abuse is not required. See In re
T.G., 497 (“Regardless of whether [the doctor] made a medical diagnosis of
child abuse in these circumstances, it [would be] error for the trial court to
ignore Mother's responsibility for [the child’s] actual physical state and
conclude that Mother’s obvious medical neglect was not serious physical
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neglect that is tantamount to child abuse pursuant to 23 Pa.C.S.
§ 6303(b.1)(7) of the CPSL.”).
Likewise, we find unconvincing Mother’s assertion that the juvenile
court’s finding of abuse was improper because A.B. was discharged to Mother’s
care. See Mother’s Brief at 17. The argument insinuates that the agency
would under no circumstances return a child to the care of perpetrator of
abuse. However, as noted supra, DHS acquiesced to the discharge only after
fashioning a safety plan that enlisted the supervision of maternal grandmother
and aunt, initiating in-home services, and providing access to a home nurse.
The agency’s flexibility was consistent with its mandate to preserve the unity
of the family whenever possible. In this light, it is obvious that A.B.’s return
home is not determinative of whether Mother committed abuse by knowingly
deviating from the child’s medication regimen. This argument fails.
As the certified record supports the finding of abuse pursuant to 23
Pa.C.S. § 6303(b.1), we do not disturb it.4 Accordingly, we affirm the juvenile
court order of disposition finding that mother perpetrated child abuse.
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4 We reject the guardian ad litem’s argument that the finding of child abuse
in this case serves no purpose. As our High Court recently stated in Interest
of D.R., __ A.3d __, 2020 WL 3240581, at *4 (Pa. June 16, 2020), “The
CPSL’s stated purpose is to facilitate reporting, investigation, and mitigation
of child abuse and neglect.” See also 23 Pa.C.S. § 6302. Hence, the CPSL
was enacted to protect vulnerable children from abuse and neglect, including
children who are entirely dependent upon caregivers for medical care, and to
mitigate future abuse and neglect. To the extent that the instant finding of
abuse restricts Mother’s ability to work in a field where she would be
responsible for providing similar care to vulnerable children, it serves that
aspect of the statute.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/07/2020
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