J-S19002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
                                          :
                                          :
 APPEAL OF: S.S., MOTHER                  :
                                          :
                                          :
                                          :
                                          :   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.




____________________________________________


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.
____________________________________________


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


____________________________________________


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.

____________________________________________


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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