J-S51022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.W., A                :    IN THE SUPERIOR COURT OF
    MINOR                                      :          PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: C.H., MOTHER                              No. 626 MDA 2019

                 Appeal from the Order Dated March 18, 2019
                 In the Court of Common Pleas of York County
              Juvenile Division at No(s): CP-67-DP-0000021-2019


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED OCTOBER 21, 2019

        Appellant, C.H. (“Mother”), appeals from the order entered in the York

County Court of Common Pleas that extended the dependency adjudication of

J.W. (“Child”) and found Mother was the perpetrator of child abuse against

Child. We affirm.

        The relevant facts and procedural history of this case are as follows.

Mother is the natural parent of Child, born in April 2010.1            Child began to

experience oral pain in late December 2018, due to several seriously decayed

teeth. On December 27, 2018, Mother took Child to a dentist who referred

Child to a pediatric dentist at Children’s Dental Health Associates (“CDHA”) in

York, PA. Mother tried to call that practice on December 28, 2018, to schedule

an appointment, but the office was closed, so Mother left a message. CDHA

contacted     Mother    via   text    message,     indicating   that   an   emergency

____________________________________________


1   D.W. (“Father”) is not a party to this appeal.
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appointment was available for December 31, 2018. Mother did not respond

or make any further attempts to contact the practice on her own.

         On January 16, 2019, the York County Office of Children, Youth, and

Families (“Agency”) received a child protective service (“CPS”) referral of

alleged abuse of Child, based on dental neglect.      On January 17, 2019, a

caseworker met with Mother and Child; and the caseworker and Mother called

CDHA together to schedule an appointment for Child. The caseworker also

took photos of Child’s mouth and noted obvious signs of decay, including a

hole in one of Child’s teeth. The Agency transported Mother and Child on

January 24, 2019, to CDHA. Employees of CDHA expressed concerns that

Mother was under the influence of drugs during the appointment, as she

displayed erratic and questionable behavior. Due to these concerns, Mother

was unable to consent to any further treatment for Child.

         The Agency filed an application for emergency protective custody on

January 25, 2019, after Mother tested positive for amphetamines and

Suboxone. The court granted the application, transferred physical and legal

custody of Child to the Agency, and appointed a guardian ad litem (“GAL”) for

Child.     On February 6, 2019, Mother filed a petition for court-appointed

counsel; on the same day, the Agency filed a dependency petition.            The

Agency also filed a motion for special relief, which the court granted, for court

permission to have Child undergo oral surgery. On February 11, 2019, the

court appointed counsel for Mother.


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      Following a hearing on February 14, 2019, the court adjudicated Child

dependent but noted the testimony was not complete regarding the finding of

child abuse because the court had deferred the remaining testimony for a

second adjudicatory hearing. On February 25, 2019, the Agency filed a second

motion for special relief, for court permission to have Child undergo further

oral surgery. The court granted the motion on February 26, 2019.

      On March 18, 2019, the court held a second adjudicatory hearing, during

which testimony was completed. At the hearing, all counsel also stipulated

that if the pediatric dentist, who treated Child on January 24, 2019, were

called to testify, he would say, “[T]he level of decay in [Child’s] mouth would

not be ordinary if proper dental care had occurred.” (N.T. Hearing, 3/18/19,

at 45.) Following the hearing, the court entered an order from the bench

extending the dependency adjudication of Child and finding Mother had

committed child abuse against Child. On April 17, 2019, Mother filed a timely

notice of appeal and a contemporaneous concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925.

      Mother raises the following issue for our review:

         WHETHER THE JUVENILE COURT COMMITTED AN ABUSE OF
         DISCRETION AND/OR ERROR OF LAW IN MAKING A
         FINDING OF CHILD ABUSE AS TO MOTHER WHERE THE
         OFFICE OF CHILDREN, YOUTH & FAMILIES FAILED TO
         PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
         MOTHER’S ACTIONS ROSE TO THE LEVEL OF SERIOUS
         PHYSICAL NEGLECT[?]

(Mother’s Brief at 4).


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      Our standard of review from an adjudication of dependency:

           [R]equires 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 [trial] court’s inferences or conclusions
           of law. Accordingly, we review for an abuse of discretion.

In re A.B., 63 A.3d 345, 349 (Pa.Super. 2013) (internal citation omitted). In

other words: “Although bound by the facts, we are not bound by the trial

court’s inferences, deductions, and conclusions therefrom; we must exercise

our independent judgment in reviewing the court’s determination, as opposed

to its findings of fact, and must order whatever right and justice dictate.” In

re D.A., 801 A.2d 614, 618 (Pa.Super. 2002) (en banc).

      In her single issue, Mother claims the Agency failed to prove by clear

and convincing evidence that Mother’s actions rose to the level of serious

physical neglect.    Mother avers neither the treating dentist nor any other

medical expert testified that Child’s condition resulted from serious physical

neglect. Mother alleges the only medical opinion presented was a stipulation

that the level of decay in Child’s mouth “would not be ordinary in nature, if

proper dental care had occurred.” Mother argues that beyond this stipulation,

the rest of the record reflects Mother sought dental treatment for Child.

Mother additionally contends the record lacks evidence to support the court’s

finding that Child’s dental problems would not have occurred but for Mother’s

neglect.    Mother maintains the court abused its discretion in finding that

Mother had committed child abuse through serious physical neglect of Child.


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Mother concludes this Court should reverse the finding of child abuse and

remand the matter to the trial court. We cannot agree.

      During the course of dependency proceedings, a trial court may find a

parent to be the perpetrator of child abuse as defined under the Child

Protective Services Law (“CPSL”). In Interest of J.M., 166 A.3d 408, 421-

22 (Pa.Super. 2017). The “CPSL does not create or include a separate action

for child abuse, and, under the Juvenile Act, a finding of abuse can only be

made as part of a dependency proceeding in which abuse is alleged.”           In

Interest of R.T., 592 A.2d 55, 59 (Pa.Super. 1991). See also 23 Pa.C.S.A.

§ 6370(b)(2)(i) (stating that if county agency deems it appropriate in

dependency or delinquency proceeding, including instance in which alleged

perpetrator has access or poses threat to child, county agency may petition

court for finding of child abuse).

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

         § 6303. Definitions

         (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.A. § 6303(b.1)(7).         The Juvenile Act further defines “serious

physical neglect” as, inter alia, “[t]he failure to provide a child with adequate


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essentials of life, including food, shelter, or medical care” which “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.A. §

6303(a). The existence of “child abuse” pursuant to Section 6303(b.1) must

be proved by clear and convincing evidence. In re L.Z., 631 Pa. 343, 361,

111 A.3d 1164, 1174 (2015).

      Instantly, the record supports the court’s finding of child abuse as to

Mother. Child began to experience oral pain in late December 2018, due to

several seriously decayed teeth. Though Mother took Child to a dentist on

December 27, 2018, she failed to follow up with the referral to a pediatric

dentist, until a caseworker became involved on January 17, 2019. On that

day, the caseworker also took photos of Child’s mouth and noted obvious signs

of tooth decay, including a hole in Child’s tooth. When Child finally saw the

pediatric dentist, Mother came to the appointment under the influence of

drugs and was unable to consent to treatment for Child. Only after Child was

in the Agency’s custody and the Agency filed motions for special relief that

Child finally received proper dental care.

      Furthermore, at the hearing on March 18, 2019, Child testified that she

struggled to eat food prior to her dental surgeries because of the severe pain

caused by her decaying teeth. A supervisor from the Agency similarly testified

that Child’s oral pain caused Child to miss school and struggle with both eating

and sleeping.   The supervisor additionally testified that Child needed four


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crowns, four extractions, and four pulps to fix her dental issues, and Child’s

insurance had not been billed for a dental visit since 2015. Finally, all counsel

stipulated at the March 18, 2019 hearing that if the pediatric dentist, who

treated Child on January 24, 2019, were called to testify, he would say, “[T]he

level of decay in [Child’s] mouth would not be ordinary if proper dental care

had occurred.” (See N.T. Hearing, 3/18/19, at 45.) Based on the foregoing,

the Agency successfully proved Mother committed serious physical neglect of

Child by failing to provide Child with adequate and necessary dental care. See

23 Pa.C.S.A. § 6303(a); In re L.Z., supra. Thus, we will not disturb the

court’s finding of child abuse. See 23 Pa.C.S.A. § 6303(b.1)(7); In re A.B.,

supra. Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2019




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