J-A12041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.M.P., A MINOR                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: A.M.P.
                                                      No. 1644 WDA 2016


              Appeal from the Order of September 30, 2016
            In the Court of Common Pleas of Allegheny County
     Family Court at No(s): CP-02-DP-687-2016 - FID 02-FN-837-2016

BEFORE: OLSON, SOLANO and RANSOM, JJ.

DISSENTING MEMORANDUM BY OLSON, J.:                     FILED JULY 11, 2017

      I believe that some of the most important cases this Court decides are

those involving the welfare of children, e.g., dependency, termination of

parental rights, and child custody.     This is such a case.     After carefully

reviewing the record of this very difficult case, I have concluded that the trial

court made incorrect legal conclusions and, therefore, I cannot agree with

the learned Majority that the trial court’s decision was proper. Therefore, I

respectfully dissent.

      As the learned Majority correctly notes, although this Court must apply

a highly deferential standard of review when reviewing the trial court’s

factual findings, this Court is required to review the trial court’s legal

conclusions de novo. See Majority Memorandum, ante at 4, quoting In

re M.B., 101 A.3d 124, 126-127 (Pa. Super. 2014). In this case, I agree

that the trial court’s factual findings are supported by the record. The trial

court’s legal conclusions, however, are incorrect.      The Allegheny County
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Office of Children, Youth and Families (“CYF”) proved by clear and

convincing evidence that A.M.P. lacks proper parental care necessary for her

physical health.   Accordingly, CYF’s dependency petition should have been

granted.

      As the learned Majority notes, proper parental care is “that care which

(1) is geared to the particularized needs of the child and (2) at a minimum,

is likely to prevent serious injury to the child.”     Majority Memorandum,

ante at 5, quoting In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013). I focus

on two areas where A.C. (“Mother”) and J.P. (“Father”) failed to provide

proper parental care necessary for A.M.P.’s physical health.          First, A.M.P.

was not receiving appropriate nutrition. Second, A.M.P. was not immunized.

      As the trial court correctly noted in its findings of fact, continued

malnutrition could lead to the stunting of A.M.P.’s mental and physical

development.       The feeding A.M.P. received at Children’s Hospital of

Pittsburgh (“Children’s Hospital”) and The Children’s Institute was successful

in boosting A.M.P.’s nutrition. She gained 55 ounces during the 29 days that

she   was   at   Children’s   Hospital   and   The   Children’s   Institute.   The

uncontradicted testimony presented at the dependency hearing was that

A.M.P. should be gaining approximately one ounce in weight per day if

Mother and Father were following the proper procedures for feeding her.

N.T., 9/30/16, at 33.     Instead, the trial court found that A.M.P. lost six

ounces during the 49 days between her discharge from The Children’s



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Institute and the dependency hearing.     In other words, A.M.P. weighed at

least 55 ounces less than she would have if Mother and Father were

providing her with proper parental care for her physical health.1    Although

this may seem like a small difference, 55 ounces represents over one-

quarter of A.M.P.’s weight. The testimony at the dependency hearing was

that this weight loss, instead of a weight gain, may cause A.M.P. to “develop

another life-threatening condition.” N.T., 9/30/16, at 33.

      The record reflects that Mother misinformed Dr. Catherine Udekwu

about A.M.P.’s weight. Dr. Udekwu testified that A.M.P.’s weight was below

the third percentile and this was concerning.     Id. at 107.   Dr. Udekwu,

however, was under the impression that this was a weight gain for A.M.P.

Id. As noted above, this was incorrect. This was a six ounce weight loss

from when A.M.P. was discharged from The Children’s Institute. 2 During the


1
  In light of the uncontroverted evidence that A.M.P. lost weight after
discharge from The Children’s Institute, I fail to understand how the learned
Majority makes the legal conclusion that, “Since A.M.P.’s discharge from the
hospital, parents continue to provide proper care.”                 Majority
Memorandum, ante at 5. In fact, I am very troubled by the fact that
A.M.P. was gaining weight when in the hospital by being fed a special
formula through a nasogastric (“NG”) feeding tube; however, upon discharge
(with instructions to continue the NG tube feedings), Mother, along with an
occupational therapist, chose to stop the NG tube feedings and switch to a
bottle. N.T., 9/30/16, at 148.
2
  It is not clear from the record why Mother provided Dr. Udekwu with
incorrect information as to A.M.P.’s weight loss. I note, however, that
Mother refused to sign releases so that Dr. Dannika Wallace and another
doctor, two of A.M.P.’s previous pediatricians, could release A.M.P.’s medical
records to the doctors that subsequently cared for A.M.P. N.T., 9/30/16, at
(Footnote Continued Next Page)


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dependency hearing, when told that A.M.P. had actually lost weight since her

discharge from The Children’s Institute, Dr. Udekwu indicated that that

concerned her. Id. at 116.

      Mother is correct that the underlying cause of A.M.P.’s medical

condition is not definitively known (although, as the trial court found, the

doctors at Children’s Hospital believe that a milk allergy is the cause). What

is known, however, is that proper medical care is capable of treating A.M.P.’s

failure to thrive, while doctors attempt to find the cause of her condition.3

Mother and Father have refused to provide the appropriate parental care to




                       _______________________
(Footnote Continued)
81-82. I find this fact to be very troubling as it raises the concern that
Mother was attempting to hide A.M.P.’s medical history from her treating
physicians.

Moreover, Mother testified at the dependency hearing that the stay at
Children’s Hospital and The Children’s Institute, the only 29 days of A.M.P.’s
life where she gained an appropriate amount of weight, was a “waste of
[her] time.” Id. at 147. Mother also incorrectly testified at the dependency
hearing that A.M.P. had gained weight since her discharge from The
Children’s Institute. Id. at 166. A.M.P. not only failed to gain weight since
her discharge, she actually lost weight since her discharge.
3
  As the trial court found, the evidence also establishes that proper medical
care, i.e., the use of a topical steroid, improves A.M.P.’s eczema. Once
again, however, I am troubled that, upon discharge from the hospital,
A.M.P.’s eczema worsened. As Dr. Udekwu testified, when she saw A.M.P.
on September 29, 2016, “[h]er skin was worse. It was more weepy.
[A.M.P.] was more itchy. She seemed uncomfortable. She looked worse
than she did the week before.” N.T., 9/30/16, at 109-110. Thus, while
under the care of the hospital, A.M.P. was improving; however, upon
discharge and under the care of Mother and Father, A.M.P.’s condition
worsened.



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treat A.M.P.’s symptoms, which could lead to A.M.P. facing a life-threatening

medical condition.

      Turning to A.M.P.’s immunizations, the trial court found that A.M.P.

was not immunized.        Furthermore, the trial court found that this lack of

immunizations was more concerning for an individual with A.M.P.’s medical

conditions.   The uncontradicted testimony at the dependency hearing was

that Mother continually chose not to immunize A.M.P. despite the doctors’

recommendations.       The record further reflects that Mother and Father are

not religiously or otherwise generally opposed to immunizations.       Cf. Trial

Court Order, 9/30/16, at 1 (finding that A.M.P.’s sister is up-to-date on all of

her immunizations).        Dr. Udekwu testified that Mother’s fears about

vaccinations for A.M.P., i.e., A.M.P.’s weight and potential allergies, were

unfounded. See N.T., 9/30/16, at 111-112.

      Mother argues that she was merely asking questions and taking time

to make a decision regarding A.M.P.’s immunizations. Although I agree with

Mother that asking questions is proper parental care, refusing to listen to

every doctor’s recommendation regarding immunizations because of an

incorrect belief regarding A.M.P.’s medical condition is not proper parental

care.4 Thus, the trial court’s factual findings indicate that Mother and Father

are not providing proper parental care for A.M.P.’s physical health.


4
 The learned Majority incorrectly focuses upon whether there is law which
generally requires children A.M.P.’s age to be immunized. See Majority
(Footnote Continued Next Page)


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      CYF’s petition did not seek to remove A.M.P. from Mother and Father’s

care. Instead, CYF only sought a declaration that A.M.P. was dependent so

that it could provide support to Mother and Father necessary to ensure that

A.M.P. receives the proper medical care. Based upon the trial court’s own

factual findings, I believe that it erred in concluding that A.M.P. had proper

parental care necessary for her physical health.       Accordingly, I would

reverse the trial court’s order dismissing CYF’s petition and remand for entry

of an order declaring A.M.P. dependent.




                       _______________________
(Footnote Continued)
Memorandum, ante at 6, citing 28 Pa. Code § 23. The focus in this
dependency proceeding is on whether immunizations are required in order to
care for A.M.P.’s physical health. It is clear that they are.



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