J-S45001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: M.M., A MINOR            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
    APPEAL OF: T.S., MOTHER
                                                      No. 209 EDA 2019


               Appeal from the Order Entered December 18, 2018
              In the Court of Common Pleas of Philadelphia County
             Domestic Relations at No(s): CP-51-DP-0001266-2018


    IN THE INTEREST OF: N.M., A MINOR            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
    APPEAL OF: T.S., MOTHER
                                                      No. 211 EDA 2019


               Appeal from the Order Entered December 18, 2018
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0001273-2018


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 07, 2019

        T.S. (“Mother”) appeals from the orders of disposition entered

December 18, 2018, in which the trial court adjudicated her two children, M.M.

(born in December of 2011) and N.M. (born in November of 2009) (collectively

“Children”), dependent and found child abuse as to M.M. by Mother.        We

affirm.1
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Various procedural issues arose due to Mother’s filing of the appeals pro se,
and submitting pro se Pa.R.A.P. 1925(a)(2)(i) and (b) concise statements of
errors complained of on appeal, while she was still represented by private
counsel, Reginald C. Allen, Esq. Attorney Allen was directed to file Rule
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       This case began following the filing of dependency petitions for both

Children by the Department of Human Services (“DHS”), wherein DHS alleged

that Mother perpetrated child abuse on M.M. In its Pa.R.A.P. 1925(a) opinion,

the trial court stated that it heard testimony from thirteen witnesses over the

course of four hearings that were held on September 17, 2018, October 3,

2018, December 10, 2018, and December 18, 2018. Beginning on page 3 and

extending to page 22 of its opinion, the court provided an extensive discussion

relating to the testimony of each witness who testified at the hearings. It then

provided the following conclusions regarding its determination that Mother

was the perpetrator of child abuse as to M.M. and would likely inflict similar

abuse on N.M.

       Based upon the credible expert testimony of three (3) doctors this
       [c]ourt found clear and convincing evidence that Mother’s acts of
       exaggerating medical symptoms to various medical facilities and
       making misrepresentations to each medial [sic] team[], resulting
       in an unnecessary full-length hard cast and unnecessary medical
       procedures wherein M.M. was given anesthesia when it was not
       medically necessary, was child abuse as to M.M.

       Further, Mother’s exaggeration of medical symptoms and
       misinformation to multiple medial [sic] facilities, inflicting child
       abuse upon M.M., is a valid predictive behavior as creating a
       potential safety risk for Mother’s other Child, N.M. This [c]ourt
____________________________________________


1925(b) statements and to respond to a rule to show cause in that dual
representation is in contravention of the policy precluding hybrid
representation. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa.
2011). After Attorney Allen filed a motion to withdraw as counsel, which was
granted, the trial court appointed Gary Sanford Server, Esq., to represent
Mother. Additionally, Attorney Server complied with this Court’s order
directing him to file amended Rule 1925(b) statements. We also note that on
January 23, 2019, this Court consolidated the two appeals.

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     found M.M. had suffered child abuse of such nature as would
     ordinarily not be sustained or exist except for the actions of
     Mother. Mother’s exaggeration of M.M.’s ankle injury, Mother’s
     misinformation of an MRI and fracture diagnosis, Mother’s
     exaggeration of M.M.’s level of constipation and lack of urination,
     Mother’s rejection of lesser invasive forms of treatment, and
     Mother’s March and May 2018 indicated CPS [Child Protective
     Service] reports, resulted in M.M. receiving potentially harmful
     medical evaluations and treatments. The credible substantial
     evidence heard by this [c]ourt established a prima facie case that
     [] Mother was the perpetrator of the abuse. Mother, as the sole
     caretaker, is [a fact that is] not in dispute by any party. Regarding
     the Department’s request for a finding of child abuse as to N.M.,
     this [c]ourt did not make a finding of child abuse for N.M. against
     Mother[,] but addressed its concern that Mother created a
     reasonable likelihood of bodily injury to N.M. through her actions
     as N.M. has also on several occasions throughout the years been
     brought to [the] primary care facility by Mother with medical
     complaints despite the fact that N.M. appeared well. Therefore,
     this [c]ourt found clear and convincing evidence that Mother was
     the perpetrator of the abuse as to M.M.

Trial Court Opinion (TCO), 4/15/19, at 28-29 (unnumbered).

     The trial court’s opinion also discussed the basis for its conclusion that

Children were dependent, stating:

     This [c]ourt heard credible evidence from the DHS Intake Worker,
     Ms. Iris Pizarro, who noted that she made contact with this family
     prior to [] Children[’s] being removed from Mother in May 2018
     and being taken into Protective Custody. She noted that she
     received a CPS report in March 2018, regarding [] Child, M.M.[,]
     that M.M. had undergone numerous x-rays with regard to having
     a fracture that actually wasn’t in existence. She stated that when
     she went to the home to observe [] Children, she saw that both
     Children had been kept home from school and had been observed
     to be running around and playing, appearing well. Ms. Pizarro
     indicated this report after reviewing M.M.’s medical records
     surrounding the foot injury and speaking with medical personnel.
     Ms. Pizarro then testified that in May 2018, after having just
     visited the family five (5) days prior to implement[ing] a safety
     plan wherein Mother would contact maternal grandfather if she
     believed [] Children were ill and then escalate to call[ing]

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     Children’s primary [doctor], Dr. Sutherland, before Mother would
     take either of the Children to a hospital, etc.[,] that Mother[] had
     taken M.M. to the emergency room for a constipation issue and
     that Mother was not allowing a lesser [invasive] measure to be
     performed, insisting on a procedure that involved anesthesia, an
     [operating room] visit and a manual disempaction of the victim
     [C]hild M.M. Ms. Pizarro indicated that both [C]hildren appeared
     fine when she went to see them in Mother’s home and that she
     removed them from Mother’s care and indicated this report based
     upon review of M.M.’s medical records and conversation she had
     with the medical team. Ms. Pizarro indicated that she removed
     both Children due to Mother’s self-reported mental health history
     and that the manner in which Mother reports M.M.’s medical
     issues was equally concerning for N.M. as she feared that neither
     Child could be safely maintained in Mother’s care. This [c]ourt
     agreed that neither Child could be safely maintained in Mother’s
     care. Specifically, this [c]ourt’s finding of clear and convincing
     evidence that Mother was the perpetrator of child abuse as to M.M.
     was th[e] basis for this [c]ourt’s adjudication of M.M.
     Furthermore, this [c]ourt determined that the circumstances
     giving rise to M.M.’s adjudication were so concerning that Mother
     also created a potential safety risk for N.M. and therefore served
     as a basis for N.M.’s adjudication.

     Therefore, this [c]ourt found that DHS had shown by clear and
     convincing evidence that in addition to a finding of child abuse
     against Mother as [] Children were without proper parental care,
     and that such care was not available immediately due to Mother’s
     mental health. The testimony heard by this [c]ourt was clear,
     direct, weighty and convincing that [] Children’s health, safety and
     welfare were at risk, and thus [] Children were adjudicated
     dependent.

Id. at 30-31 (unnumbered) (footnote omitted).

     On January 10, 2019, Mother filed the pro se notices of appeal, and as

noted in footnote 1 supra, the amended concise statements were filed by

Attorney Server on February 27, 2019. Although Attorney Server’s amended

statements contained five issues based upon those Mother had raised in her

pro se statements, he explains that following his review of the record and

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transcripts of the hearings, prior counsel’s file, and the trial court’s opinion,

dated April 15, 2019, he determined that three of the issues did not have

merit and were “tangential to the findings of dependency and child abuse[.]”

Mother’s brief at 6 (footnote).   Therefore, Attorney Server only provides a

combined argument in Mother’s brief in relation to the following two issues on

appeal:

          I.       Did the [c]ourt err when it found that there was clear
            and convincing evidence that Mother was the perpetrator of
            child abuse as to M.M.?

          II.     Did the [c]ourt err when it found that there was clear
            and convincing evidence that M.M. and N.M. were both
            dependent due to present inability where the [c]ourt based
            the adjudications solely upon the perpetration of child abuse
            as to M.M.?

Id.

      Mother’s argument challenges the sufficiency of the evidence to support

the trial court’s decision that M.M. was abused by Mother in that Mother

exaggerated M.M.’s symptoms relating to M.M.’s gastrointestinal problem and

her injured foot, and sought more invasive treatment than was necessary.

Moreover, Mother argues that the court further erred in finding that the abuse

of M.M. created a potential safety risk for N.M. Specifically, Mother relies on

her own witnesses’ testimony that she is a caring Mother who could not stand

by and watch her daughter suffer. She also relies on medical records and

various doctors’ testimony as to M.M.’s diagnoses, claiming she did not

“fabricate or exaggerate” the doctors’ diagnoses.      Id. at 27.    Essentially,

Mother claims that she “did what any reasonable, sensitive and protective

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parent would do: she questioned the [doctors’] judgment[s] and she made []

recommendation[s] to [the doctors] based on past experience with her child.”

Id. at 28. Mother also argues that because there was insufficient evidence to

support any finding as to abuse, the court likewise erred in finding Children

dependent in that the court’s decision was based on speculation. Lastly, in

her brief Mother acknowledges that there are some factual discrepancies for

the trial court to resolve, however, she contends that the court’s errors rest

on its inferences, deductions and conclusions, which are not supported by

clear and convincing evidence.

        The Pennsylvania Supreme Court sets forth our standard of review of a

dependency case, stating:

              Initially, we reiterate that “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.” In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190
        (2010). We review for abuse of discretion, id. ….

                [Moreover,] the applicable version of the CPSL[2] define[s]
        “child abuse” to include “any recent act or failure to act” which
        causes “nonaccidental serious physical injury;” “any recent act,
        failure to act or series of such acts or failures to act” “which
        creates an imminent risk of serious physical injury;” or “serious
        physical neglect” “which endangers a child’s life or development
        or impairs the child’s functioning.” 23 Pa.C.S. § 6303(b)(1)(i),
        (iii), (iv)…. In turn, the CPSL defined “serious physical injury” as
        an injury that causes “severe pain” or “significantly impairs” the
        child’s physical functioning temporarily or permanently. Id. §
        6303(a).      While a petitioning party must demonstrate the
____________________________________________


2   Child Protective Services Law, 23 Pa.C.S. §§ 6301 et seq.

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     existence of child abuse by the clear and convincing evidence
     standard applicable to most dependency determinations, 42
     Pa.C.S. § 6341(c) (recognizing clear and convincing evidence as
     the necessary standard for concluding that a child is dependent),
     the identity of the abuser need only be established through prima
     facie evidence in certain situations….


In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).

     For the definition of prima facie evidence in the context of a child abuse

case, we look to Section 6381 of the CPSL, which provides the following:

     6381. Evidence in court proceedings.

                                    ...

     (d) Prima facie evidence of abuse.—Evidence that a child has
     suffered child abuse of such a nature as would ordinarily not be
     sustained or exist except by reason of the acts or omissions of the
     parent or other person responsible for the welfare of the child shall
     be prima facie evidence of child abuse by the parent or other
     person responsible for the welfare of the child.

23 Pa.C.S. § 6381(d). Moreover,

           [w]ith regard to dependency cases involving child abuse,
     the safety of the child is paramount. In re R.P., 957 A.2d 1205
     (Pa. Super. 2008). As we have explained,

           [t]he Juvenile Act, 42 Pa.C.S. §§ 6301-65, which was
           amended in 1998 to conform to the federal Adoption and
           Safe Families Act (“ASFA”), 52 U.S.C. § 671 et seq.,
           controls the adjudication and disposition of dependent
           children. The policy underlying these statutes aims at
           the prevention of children languishing indefinitely in
           foster care, with its inherent lack of permanency,
           normalcy, and long-term parental commitment.
           Furthermore, the 1998 amendments to the Juvenile Act,
           as required by ASFA, place the focus of dependency
           proceedings on the child. Safety, permanency, and the
           well-being of the child must take precedence over all
           other considerations, including the rights of the parents.


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         Id. at 1217-18 (some internal citations omitted).

Interest of S.L., 202 A.3d 723, 727 (Pa. Super. 2019).

         Additionally, we note that the CPSL defines “child abuse” as follows:

         (b.1) Child abuse.—The term “child abuse” shall mean
         intentionally, knowingly or recklessly doing any of the following:

                                       ...

             (2) Fabricating, feigning or intentionally exaggerating or
             inducing a medical symptom or disease which results in
             a potentially harmful medical evaluation or treatment to
             the child through any recent act.


23 Pa.C.S. § 6303(b.1)(2). We also recognize that Section 6303(a) of the

CPSL defines bodily injury as “impairment of physical condition or substantial

pain.”     Moreover, “a finding of dependency can be made on the basis of

prognostic evidence and such evidence is sufficient to meet the strict burden

of proof necessary to declare a child dependent.” In re R.W.J., 826 A.2d 10,

14 (Pa. Super. 2003).

         The thrust of Mother’s entire argument is that the inferences and

conclusions reached by the trial court are not supported by clear and

convincing evidence. We disagree. Many of Mother’s contentions rest on facts

elicited through her testimony and that of her witnesses and that the

testimony by the doctors or agency personnel was not credible. However, the

trial court found neither Mother nor Mother’s psychiatrist, Dr. Frankel,

credible. With regard to Dr. Frankel, the court noted:

         Dr. Frankel, by his own admission did not properly perform
         Mother’s psychiatric evaluation in that he missed key aspects of


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      the assessment which may have confirmed or ruled out Mother
      having factitious disorder by proxy. Specifically, Dr. Frankel did
      not speak with either of the Children in question nor did he review
      any of their medical history outside of what Mother told him, he
      also did not administer any structured progress tools as a part of
      the evaluation; and most shockingly, despite being familiar with
      the DSM-5 criteria for identifying factitious disorder by proxy, he
      did not take into account the comments of the DSM-5 which
      indicate that a diagnosis for factitious disorder by proxy could
      include the exaggerating of symptoms, etc. For these reasons,
      this [c]ourt discounted Dr. Frankel’s entire testimony and could
      not afford any weight to Dr. Frankel’s evaluation.

TCO at 36 (unnumbered).

      As for the other three witnesses presented by Mother, the court noted

that their testimony was limited in that they expressed that Mother appeared

to be a caring parent and was concerned about her children. However, the

court stated that “[n]one of [them] were able to testify regarding the medical

concerns at hand as they each lacked personal knowledge and had not seen

the [C]hildren in several months or several years.” Id.

      Lastly, the court found Mother’s testimony not credible. In support of

this finding, the court set forth specific facts upon which it based its credibility

determination, stating:

      Regarding Mother’s own testimony, this [c]ourt did not find
      Mother to be credible. Mother testified that she carries multiple
      degrees, including two Masters degrees and has a long history
      working in fields involving children. Mother also testified to a long-
      standing history of medical appointments for various ailments for
      both Children and that for M.M. in particular, her gastroenology
      [sic] needs date back to when she was two (2) months old. Given
      Mother’s high levels of education and hands-on involvement with
      both Children’s extensive medical histories, this [c]ourt did not
      agree with Mother when she declared that she merely mistakenly
      told Dr. Sutherland that M.M. had an MRI completed by Dr. Gross
      which showed a fracture. Moreover, for Mother to have been so

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      concerned that M.M. had a fracture that was still [] pain[ful,] to
      take M.M. to Dr. Sutherland after having already been evaluated
      twice, this [c]ourt found it odd that Mother did not feel like getting
      [Children’s Hospital of Philadelphia (CHOP)] to conduct what
      would have been CHOP’s second x-ray of M.M. as Mother “didn’t
      feel like” driving from Dr. Sutherland’s office in West Philadelphia
      to CHOP, which is also located in West Philadelphia. Instead,
      Mother avoided CHOP altogether and went to Dr. Gross, outside
      of the CHOP network, perhaps on purpose. This [c]ourt also did
      not find credible Mother’s testimony that nobody told her that
      M.M. had passed stool during the overnight stay at CHOP ER as
      Dr. Grossman specifically asked Mother if he could try another
      enema before giving M.M. anesthesia to verify whether or not
      M.M. passed stool overnight. Dr. Grossman recounted that Mother
      declined this less-invasive procedure when he made the request[,]
      which suggests that Mother did in fact gain knowledge that M.M.
      may have passed stool overnight.

Id. at 37-38 (unnumbered).

      After a careful review of the extensive record in this case, we conclude

that the trial court’s credibility determinations are supported by competent

evidence. Moreover, our Supreme Court has directed that “we are not in a

position to make the close calls based on fact-specific determinations.” In re

R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). “Not only are our trial judges observing

the parties during the hearing, but usually, … they have presided over several

other hearings with the same parties and have a longitudinal understanding

of the case and best interests of the child[ren] involved. Thus, we must defer

to the trial judges who see and hear the parties and can determine the

credibility to be placed on each witness….” Id. Consequently, based on those

credibility determinations, the trial court’s evaluation of its findings provided

the basis for the reasoning underlying its conclusions as to its dependency

orders. Additionally, Mother has failed to convince this Court that the trial


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court abused its discretion in this regard and as to its conclusion that Mother

abused M.M. We, therefore, affirm the trial court’s orders.

      Orders affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/19




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