J-S66016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.M., A MINOR :        IN THE SUPERIOR COURT OF
                                      :             PENNSYLVANIA
                                      :
    APPEAL OF: L.M., MOTHER           :
                                      :
                                      :
                                      :
                                      :
                                      :        No. 1339 EDA 2018

                 Appeal from the Order Entered March 26, 2018
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-0002333-2017


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 09, 2018

       L.M. (“Mother”) appeals from the order entered March 26, 2018, finding

that aggravated circumstances existed against Mother as to her minor

daughter, J.M. (“Child”), born in February 2004, and that she had committed

child abuse.1 We affirm.

       Child was admitted to Children’s Hospital of Philadelphia (“CHOP”) for

over a month in February 2017 through March 2017 with symptoms of

vomiting, abdominal pain, weakness, dehydration, and weight loss. See N.T.,

Hearing, 9/6/17, at 41-43. Prior to this hospitalization, Child had been healthy.

See N.T., Hearing, 3/26/18, at 105. Child was diagnosed with rumination



____________________________________________


1The court did not make a finding of child abuse or aggravated circumstances
as to Child’s biological father, R.T. (“Father”), a non-custodial parent.
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syndrome, a form of conversion disorder.2 See N.T., Hearing, 9/6/17, at 43.

CHOP recommended intensive behavioral health treatment and transferred

Child to the Medical-Behavioral Unit (“MBU”). Mother, a nurse, resisted this

transfer and demanded unnecessary medical testing and medication. See id.,

at 49-54, 60. CHOP eventually moved Child back to general pediatrics due to

Mother’s lack of cooperation with the MBU recommended treatment. See id.,

at 54-56. When Mother eventually agreed to comply with recommended

treatment for Child, CHOP discharged Child to Mother’s care. See id., at 58-

60.

       Following the discharge, Mother brought Child to a single outpatient

psychological appointment. See id., at 61-62. Child’s condition continued to

deteriorate to the point where she could not walk without assistance. See id.,

at 69. In May 2017, Child was admitted to Nemours Alfred Dupont Hospital

(“Nemours”), where, after undergoing a spinal tap and blood tests, she was

diagnosed with conversion disorder, manifesting in an abnormal gait and

pseudo-seizures. See id., at 63-64, 71-72, 80. Mother did not accept this

diagnosis and continued to insist that Child be given medication. See id., at

71, 75-76, 80. During Child’s time at Nemours, Mother stated that the hospital

was killing Child by not giving her medication. See id., at 76-78.


____________________________________________


2 Rumination syndrome is a psychiatric condition where patients force
themselves to vomit; conversion disorder is, likewise, a psychiatric condition
which may include vomiting, pseudo-seizures, or the inability to walk. See id.



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       Nemours transferred Child to Pittsburgh Children’s Institute (“PCI”) for

treatment for her conversion disorder, where she was additionally diagnosed

with hypermobility, or Ehlers-Danos Syndrome Type 3.3 See id., at 78-80.

This syndrome is non-pathologic and does not affect the gastrointestinal

system. See N.T., Hearing, 3/26/18, at 22, 34, 65-66. Child was treated at

PCI for approximately one month and discharged to Mother’s care in July

2017. See N.T., Hearing, 9/7/17, at 78-80.

       In late July 2017, Child began seeing a new primary care physician and

was seen by the CHOP Diagnostic Center, both of whom expressed concerns

with Mother’s continued demands for increased medical intervention, testing,

and pain medication. See id., at 80-81. By this point Child was wheelchair-

dependent. See id.

       On August 3, 2017, CHOP admitted Child after she stopped speaking

and moving voluntarily. See id., at 84. Following an evaluation by several

specialists, Child was again diagnosed with conversion disorder and the EDS

diagnosis was confirmed. See id., at 83. Child’s condition worsened, and she

required a nasogastric tube for feeding, was wearing a diaper, and could not

complete any activities of daily living. See id., at 83-84.


____________________________________________


3 “Hypermobile Ehlers-Danlos syndrome is an inherited connective tissue
disorder that is caused by defects in a protein called collagen.” U.S.
Department of Health, National Institute of Health, Hypermobile Ehlers-Danlos
syndrome,                              available                           at
https://rarediseases.info.nih.gov/diseases/2081/hypermobile-ehlers-danlos-
syndrome (last visited October 31, 2018).

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       Mother continued to obstruct psychological care and Child’s condition

worsened in Mother’s presence. See id., at 86-87. Child suffered pseudo-

seizures only in Mother’s presence, and was more compliant with treatment

when Mother was not present. Mother insisted on further unnecessary testing

and medication, including cardiac monitoring and anti-seizure medications.

See id., at 86-88.

       On August 23, 2017, the Department of Human Services (“DHS”)

received a general protective services report regarding Child, Mother, and

Child’s medical issues. The report further alleged that Mother had obstructed

and   refused     treatment     for   Child,   and   requested   increased   medical

interventions despite being told that Child’s symptoms were psychological in

nature. Mother had a history of anxiety disorder and there were concerns of

medical neglect and child abuse by Mother, specifically, Munchausen

Syndrome by Proxy.4 On August 25, 2017, the report was upgraded to a child

protective services (“CPS”) report.

       On August 29, 2017, DHS, upon application, obtained an order for

protective custody (“OPC”). A shelter care hearing was scheduled and, on

August 31, 2017, the trial court lifted the OPC and ordered Child’s temporary


____________________________________________


4 “Factitious disorder imposed on another … formerly Munchausen syndrome
by proxy … is a mental illness in which a person acts as if an individual he or
she is caring for has a physical or mental illness when the person is not really
sick.” Cleveland Clinic, Factitious Disorder Imposed on Another,
https://my.clevelandclinic.org/health/diseases/9834-factitious-disorder-
imposed-on-another-fdia, available at last visited (October 31, 2018).

                                           -4-
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commitment to DHS to stand. Mother was to have no contact with Child, who

was placed in a CHOP medical facility.

       On September 6, 2017, DHS filed a dependency petition alleging child

abuse and aggravated circumstances. The next day, the court began hearing

evidence regarding the dependency petition and the requested findings. Dr.

Phil Scribano, a pediatrician who observed Child during her hospitalizations at

CHOP, testified regarding those hospitalizations. See N.T., Hearing, 9/7/17,

at 41-103. Dr. Scribano testified that, in his expert opinion, based on the facts

above, Child was the victim of medical child abuse via Munchausen Syndrome

by Proxy. See id., at 89-92. Since being separated from Mother and provided

with intensive psychiatric and psychological treatment, Child has shown some

improvement, although time would be needed to get her stabilized. See id.

Dr. Scribano believed that Child’s improvement would be impossible in the

presence of Mother. See id.

       On December 1, 2017, following an additional hearing, the court

adjudicated Child dependent.5

       On March 26, 2018, the court held a permanency review hearing and

took further evidence regarding the aggravated circumstances and child abuse

allegations. Dr. Scribano appeared once more for cross-examination.

Additionally, Adrienne Redguard, DHS social worker, testified for DHS. Ms.

____________________________________________


5 The notes of testimony from the December 1, 2017 hearing are not included
in either the certified or the reproduced record. As Mother does not challenge
the court’s finding of dependency, our analysis is unaffected.

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Redguard testified that she spoke with Child, who was still hospitalized at

CHOP. See N.T., Hearing, 3/26/18, at 106-111. Child informed Ms. Redguard

that she had a plan to harm herself if she was returned to Mother’s care, and

that Mother had “really f’d her up.” Id., at 109. Child stated that prior to her

illness, she had not had a close relationship with Mother, who called her stupid,

dumb, and ugly; Child felt that the illness “forced” her to rely on her mother.

Id., at 113.

      Additionally, hospital summaries and records related to Child’s care were

admitted as exhibits. See DHS Exhibit 3. The summaries reveal a pattern of

interference, abusive behavior, and threatening language towards hospital

staff by Mother. For example, on one occasion security was called to Child’s

room at Nemours due to Mother’s behavior. See id. In another incident, when

informed that Child was suffering from pseudo-seizures, Mother said to the

nurse, “If I punch you in the face and call it a pseudo-punch, does that make

it not real?” Id.

      Mother testified in her own defense. She stated that her relationship

with Child, prior to her hospitalization, was good. See id., at 133-134. She

stated she had always accepted the diagnosis of conversion disorder and

denied interfering with Child’s medical treatment or any intent to make Child

sick. See id., at 134-68. Mother did admit to complaining on social media

about the care Child received. See id., at 167, 183-86, 190-91.

      At the conclusion of the hearing and following the argument of counsel,

the court found clear and convincing evidence of child abuse under § 6303 of

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the Child Protective Services Law (“CPSL”), 23 Pa.C.S.A. §§ 6301, et seq., and

ordered the August 25, 2017 CPS report changed from indicated to founded.

Additionally, the trial court found clear and convincing evidence of aggravated

circumstances under § 6302 of the Juvenile Act, 42 Pa.C.S.A. §§ 6301, et seq.

      Mother timely appealed and filed her statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Mother

raises the following issues for our review:

      A. Did the trial court commit reversible error when it made a
      finding that the child was a victim of child abuse by [Mother] as
      defined at 23 Pa.C.S. § 6303, where such determination was not
      supported by clear and convincing evidence under the Child
      Protective Services Law, 23 Pa.C.S. § 6303(B.1)?

      B. Did the trial court err in its aggravated circumstances order
      when it determined that there was clear and convincing evidence
      presented to establish aggravated circumstances for abuse of a
      child existed [sic] as to [Mother] under 42 Pa.C.S. § 6302(2)[?]

Mother’s Brief, at 3.

      The standard of review in dependency cases requires an appellate
      court to accept 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. We review for abuse of discretion[.]

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

omitted).

      As noted, Mother does not appeal the trial court’s finding of dependency.

Instead, she challenges the court’s findings of child abuse and aggravated

circumstances.



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      “As part of the dependency adjudication, a court may find a parent to

be the perpetrator of child abuse,” as defined by the CPSL. In re L.Z., 111

A.3d 1164, 1176 (Pa. 2015). “In cases of child abuse, a court’s finding as to

the identity of the abusers need only be established by prima facie evidence

that the abuse normally would not have occurred except by reason of acts or

omissions of the caretakers.” In re R.P., 957 A.2d 1205, 1217–1218 (Pa.

Super. 2008) (internal quotation marks, emphasis, and citations omitted).

      The CPSL defines “child abuse” as follows, in relevant part:

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

                                      ***

            (1) Causing bodily injury to a child through any recent
            act or failure to act.

            (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.

            (3) Causing or substantially contributing to serious
            mental injury to a child through any act or failure to
            act or a series of such acts or failures to act.

                                      ***

23 Pa.C.S.A. § 6303(b.1)(1)-(3).

      Bodily injury is defined as “[i]mpairment of physical condition or

substantial pain.” 23 Pa.C.S.A. § 6303(a). Serious mental injury is defined as

“[a] psychological condition, as diagnosed by a physician or licensed

psychologist, including the refusal of appropriate treatment, that: (1) renders

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a child chronically and severely anxious, agitated, depressed, socially

withdrawn, psychotic or in reasonable fear that the child's life or safety is

threatened; or (2) seriously interferes with a child’s ability to accomplish age-

appropriate developmental and social tasks.” Id.

      In defining intentionally, knowingly, and recklessly, the CPSL refers to

the Crimes Code definitions, in relevant part:

      (b) Kinds of culpability defined.--

            (1) A person acts intentionally with respect to a
            material element of an offense when:

                  (i) if the element involves the nature of his
                  conduct or a result thereof, it is his conscious
                  object to engage in conduct of that nature or to
                  cause such a result; and

                  (ii) if the element involves the attendant
                  circumstances, he is aware of the existence of
                  such circumstances or he believes or hopes that
                  they exist.

            (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.

            (3) 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

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            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)(1)-(3).

      First, Mother claims that the court abused its discretion in finding clear

and convincing evidence that Child was the victim of child abuse by Mother.

Mother contends that the evidence presented at the hearing did not establish

by clear and convincing evidence that she intentionally, knowingly, or

recklessly caused bodily injury to Child through an act or failure to act. Mother

further notes that the court did not identify which subsection of 23 Pa.C.S.A.

§ 6303(b.1) it relied upon to make its ruling, but that Mother does not meet

the first three subsections of child abuse definitions.

      Here, the trial court’s opinion does not discuss the definitions and case

law discussed above, nor does it note the definition under which it found

Mother had committed child abuse. See Trial Court Opinion, 7/19/18, at 4-5.

Instead, the trial court focuses on extensive fact finding and, in legal analysis,

almost solely on the Juvenile Act’s definition of aggravated circumstances.

Nevertheless, “if the established facts support a legal conclusion producing

the same outcome,” an appellate court may uphold an order of the lower court

for any valid reason appearing from the record. In re A.J.R.-H., 188 A.3d

1157, 1176 (Pa. 2018).




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      We conclude that the trial court properly found that Mother committed

child abuse pursuant to 23 Pa.C.S.A. § 6303(b.1)(2), “[f]abricating, 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.”

      Here, Child was brought to three different hospitals over the course of

a seven-month period, and she was admitted for extensive lengths of time.

Child was diagnosed with conversion disorder, and intensive behavioral health

and psychiatry evaluation and treatment were recommended. However,

Mother refused to accept that there was not a medical explanation for Child’s

symptoms, and continued to interfere in her treatment, requesting more

invasive testing and medications, before Child was discharged to her care.

      Child was subsequently hospitalized in two additional hospitals prior to

returning to CHOP; at both hospitals Mother, again, interfered with Child’s

treatment, refused to accept a psychological diagnosis, and was aggressive

towards staff. At Nemours, Child underwent further invasive testing, including

a lumbar puncture. Nevertheless, under Mother’s care, Child’s condition

continued to deteriorate until she could no longer complete age-appropriate

activities of her daily life. Mother continued to insist on unnecessary

treatments and accommodations for Child such as a chair lift and pain

medication. By the time of Child’s August 2017 hospitalization at CHOP,

Mother was insisting on anti-seizure medications and cardiac monitoring.


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      Overall, Child was subjected to blood tests, x-rays, ultrasounds, brain

and spine MRIs, a spinal tap, and EEGs. Mother’s interference was such that

Child’s care team barred Mother from visits and, only then, did Child begin to

show some improvement.

      Further, DHS presented the uncontroverted testimony of Dr. Scribano.

The trial court found this testimony credible and insightful. Dr. Scribano

testified with a reasonable degree of medical certainty that Child was the

victim of medical child abuse and neglect through Mother’s factitious disorder

imposed on another, formerly Munchausen syndrome by proxy. Dr. Scribano

explained the situation as follows:

      It is comprised of a caregiver who either exaggerates or
      embellishes or induces illness . . . . The issues often result in over-
      medicalization or overuse and insistence on testing and
      procedures and medications and diagnoses that are either unable
      to be confirmed by objective data or just don’t exist, they’re
      factitious . . . . And it’s a debilitating illness for a child to have that
      exposure, and in some cases, children then start to assume that
      behavior and, in their belief system, come to think that there are
      these medical conditions that are not real for themselves . . .

N.T., Hearing, 9/7/17, at 25.

      Indeed, that is what happened here. As the trial court observed,

      Mom was . . . over-medicalizing the situation. I believe Dr.
      Scribano when he testified that [M]other’s inserting herself in the
      medical treatment . . . created a dynamic that made it difficult, if
      not impossible, for them to implement an appropriate course of
      treatment that would allow [Child] to improve in terms of her
      medical condition . . . [Mother] circumvented trying to have those
      [psychological] assessments done . . . . I don’t even think [she
      was] given a fair opportunity to absolutely engage in mental
      health services to see if there was an improvement. I think that
      mom is very smart. You know, I think that, in this particular case,

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      with her [nursing] background, that it was detrimental to the child
      ...

N.T., Hearing, 3/26/18, at 206-208. Although Mother denied interference, her

denials are not consistent with the documentation of either hospital. The trial

court found her testimony not credible. See id., at 209.

      Mother, a nurse by profession, was informed by three separate hospitals

and teams of doctors that Child’s symptoms were psychological in nature and

that extensive behavioral health treatment would be necessary, and she was

informed of the consequences of not providing the recommended treatment.

Rather than accepting the diagnosis, Mother, with a greater than average

understanding of medical treatment and side effects, continued to take Child

to different doctors, subjecting her to increased medical interventions, until

Child was non-responsive, required tube feeding, and hospitalization.

      Mother consciously disregarded a substantial and unjustifiable risk that

Child would be harmed by her conduct. Nor would the abuse have occurred

absent the actions of Mother, who was Child’s primary caretaker. See In re

R.P., 957 A.2d at 1217–1218. Accordingly, the court did not err in finding

clear and convincing evidence that Mother had committed child abuse.

      Next, Mother claims that the court erred in finding that aggravated

circumstances existed as to Mother. She contends that insufficient evidence

was presented to establish that she intentionally caused Child physical abuse

resulting in serious bodily injury or that she engaged in aggravated physical




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neglect. The Juvenile Act defines “aggravated circumstances” as any one of

the following, in relevant part:

       (2) The 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. The Act defines aggravated physical neglect 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.

      Here, the evidence as discussed above establishes that Child was the

victim of Mother’s aggravated physical neglect resulting in a serious

impairment of her functioning. At the time of Child’s last admission to CHOP,

she was unresponsive and unable to eat, use the bathroom, or undergo any

physical activities on her own. Expert medical testimony established that it

was   Mother’s   actions—questioning    the   conversion   disorder   diagnosis,

preventing Child from obtaining mental health treatment, and insisting on

invasive and unnecessary medical intervention—which resulted in Child’s

ailments. The trial court did not err in determining that aggravated

circumstances existed as to Mother.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18




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