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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY RANSOM, J.:                             FILED JULY 11, 2017

     KidsVoice (“GAL”), guardian ad litem for A.M.P., appeals from the

September 30, 2016, order dismissing the dependency petition filed by the

Allegheny County Office of Children, Youth, and Families (“CYF”). We affirm.

     The trial court made the following findings of fact:

     [A.M.P.] was born [i]n November [], 2015; she is 10 months
     old. . . . [A.M.P.] has been diagnosed with failure to thrive. She
     currently weighs [13 pounds, 11 ounces. [A.M.P.] also has
     severe eczema. [A.M.P.] was admitted to Children’s Hospital of
     Pittsburgh on July 14, 2016, drastically underweight – 10
     pounds, 10 ounces. She was dehydrated with severe electrolyte
     deficiencies. Her condition was critical.

     [A.M.P.] was breast fed for the first few months of her life. The
     doctors believe that [A.M.P.] has an allergy to milk including
     breast milk, which may be the source of her inflamed bowels,
     which would contribute to her not eating, and not gaining
     weight. While [A.M.P.] was at Children’s Hospital, there were
     attempts made to give her formula. [A.M.P.] refused a bottle.
     She was given [a nasogastric] tube (with some hesitation by
     [A.C. (“Mother”)]) and was able to gain a little more than [two]
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     pounds. On July 28, 2016, [A.M.P.] weighed 12 pounds, 14
     ounces at the time of her discharge from [Children’s Hospital].

     She was discharged to the Children’s Institute for feeding
     rehabilitation. [A.M.P.] has an oral aversion that makes her
     reject bottles and some foods. . . . [A.M.P.] was in the Children’s
     Institute from July 28, 2016 until August 12, 2016. . . . [A.M.P.]
     weigh[ed] 12 pounds, 14 ounces at admission and 14 pounds, 1
     ounce upon discharge.

     The recommended treatment for [A.M.P.’s eczema] is a topical
     steroid. Mother was reluctant to utilize the steroid because of
     concerns of negative side effects from the steroids as well as the
     possibility that [A.M.P.] might be allergic to the steroid creams.
     Mother finally relented and the eczema has dramatically
     improved on her body and extremities and slightly on her face.

     There are concerns with the fact that [M]other keeps changing
     [A.M.P.’s] primary pediatrician. [A.M.P.] is 10 months old and
     has had [four] pediatricians.      The concern is continuity in
     treatment is important for a[n individual] with [A.M.P.’s] medical
     needs.     Another concern is that [M]other may be doctor
     shopping to get the answers that she wants or to find a doctor
     who will agree with her. However, no doctor has provided a
     definitive answer as to why [A.M.P.] continues to lose weight,
     why [she] has an oral aversion[,] and why her eczema is so
     severe. It is just as likely that [M]other is changing doctors to
     get answers to these questions.

     [A.M.P.] is unimmunized. The lack of immunizations would be
     more harmful to a[n individual] with [A.M.P.’s] medical
     conditions. As [of] September [29, 2016, A.M.P.] weighed 13
     pounds, 11 ounces, which means that she has lost nearly 1
     pound, since she was discharged from the Children's Institute.
     Continued malnutrition can affect brain and body development.
     Right now, [A.M.P.] seems to be developmentally on target. She
     is sitting up, she is making eye contact, she is speaking a few
     words, she is babbling, [she is] smiling, etc.

     Mother is working with early intervention services, which she
     says are beneficial. Mother is making attempts to feed [A.M.P.].
     According to [M]other, [A.M.P.] still rejects the bottle and food.
     The current [pediatrician] is Dr. Catherine Udekwu. She is not
     recommending that [A.M.P.] be hospitalized at this time,
     because despite the weight loss, [A.M.P.] seems to be
     developmentally on target. She will do regular weight checks to

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      monitor the situation. She will also encourage [M]other to have
      [A.M.P.] immunized.

Trial Court Order, 9/30/16, at 1-2 (certain paragraph breaks, paragraph

numbers, and quotation marks omitted).

      In July 2016, CYF filed a petition for dependency. A hearing was held

in September 2016, following which, the court dismissed CYF’s dependency

petition.   This timely appeal followed, along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        The trial

court issued a responsive opinion.

      Appellant raises the following issues for review:

      A. Whether the [t]rial [c]ourt erred as a matter of law in
         dismissing Allegheny County Office of Children, Youth and
         Families’ dependency petition pursuant to Juvenile Act, 42
         Pa.C.S. §6302(1), by applying the incorrect legal standard
         after the agency proved by clear and convincing evidence that
         A.M.P. was without proper parental care or control, or care or
         control necessary for her physical health?

      B. Whether the [t]rial [c]ourt abused its discretion in dismissing
         Allegheny County Office of Children, Youth and Families’
         dependency petition pursuant to the Juvenile Act 42 Pa.C.S.
         §6302(1), after the agency proved by clear and convincing
         evidence that A.M.P. was without proper care or control, or
         care or control necessary for her physical health?

Appellant’s Brief at 4.

      Appellant first asserts that the trial court applied the incorrect

standard of review.       We are constrained to find this issue waived as

Appellant failed to raise it in their 1925(b) statement. See Commonwealth

v. Lord, 719 A.2d 306, 309 (Pa. 1998)).        (“[I]n order to preserve their



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claims for appellate review, [a]ppellants must comply whenever the trial

court orders them to file a Statement of Maters Complained of on Appeal

pursuant to Rule 1925. Any issues not raised in a Pa.R.A.P.(b) statement

will be deemed waived.”)

       Next,   Appellant   challenges   the   trial   court’s   dismissal   of   CYF’s

dependency petition. According to Appellant, the court abused its discretion

by disregarding evidence that parents’ actions put A.M.P.’s health, safety,

and welfare at risk. Appellant’s Brief at 22-23.

       Our Supreme Court set forth our standard of review for dependency

cases as follows:

       [T]he 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. Accordingly, we
       review for an abuse of discretion.

In re M.B., 101 A3d 124, 126-127 (Pa. Super. 2014).

       Section 6302 of the Juvenile Act defines a “dependent child” as a child

who:

         is without proper parental care or control, subsistence,
         education as required by law or care or control necessary
         for his physical mental, or emotional health, or morals. A
         determination that there is a lack of proper parental care
         or control may be based upon evidence of conduct by the
         parent, guardian or other custodian that places the health,
         safety or welfare of the child at risk, including evidence of
         the parent’s, guardian’s or other custodian’s use of alcohol
         or a controlled substance that places the health, safety or
         welfare of the child at risk[.]


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42 Pa.C.S.A. § 6302(1).

       A child will only be declared dependent when he or she is presently

without proper parental care and when such care is not immediately

available. In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013); 42 Pa.C.S. §§

6301, 6302. Furthermore, “[t]his Court has defined ‘proper parental care’ as

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.” In re A.B, 63

A.3d at 349 (citation omitted).

       It is evident from the record that the parents are willing to provide

proper care for their child.      Mother was active in A.M.P.’s treatment at

Children’s Hospital and followed her doctor’s recommendations.       Notes of

Testimony (N.T.), 9/30/16 at 45-46. Mother complied with treatment and

recommendations at the Children’s Institute. Id. at 5. Furthermore, Mother

expressed a willingness to hospitalize A.M.P. should it become medically

necessary.

       Since A.M.P.’s discharge from the hospital, parents continue to provide

proper care.      A.M.P. is currently meeting all of her developmental

milestones.    Id. at 110-111, 176-177.     A.M.P. receives physical therapy,

occupational therapy, and visits a nutritionist. Id. at 148-149.   She is also

seen regularly by a gastroenterologist, dermatologist, and an allergist, and

has an active plan with her primary care physician.      Id. at 45, 108-109,

110.   It is unclear what additional services or interventions Mother could

provide.   While it is true that the child has lost weight since her hospital

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discharge, despite these treatments, there is not clear evidence that parents’

actions have contributed to or caused this weight loss.

        Finally, while it is concerning that A.M.P. does not have all of her

immunizations, we are unaware of a relevant, legal obligation with which

parents currently must conform. Cf. 28 Pa. Code § 23 (requiring all public,

private, parochial, or nonpublic school children to receive immunizations

prior   to   school   attendance,       and   providing   two   exemptions     to   the

immunization requirement).        Furthermore, Mother testified that she is not

opposed to the child receiving her immunizations, but she wishes first to

determine the underlying cause of A.M.P.’s medical issues. N.T. at 124.

        Based on this evidence, we conclude that the court’s findings are

supported by the record, and we agree that CYF failed to establish by clear

and convincing evidence that A.M.P. should be declared dependent.

Accordingly, we discern no abuse of the court’s discretion.

        Order affirmed.

        Judge   Solano    joins   the    memorandum       and   files   a   Concurring

Statement.

        Judge Olson files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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