J-A27010-18

                             2019 PA Super 121

 IN THE INTEREST OF: T.G., A MINOR       :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
 APPEAL OF: THE PHILADELPHIA             :
 DEPARTMENT OF HUMAN SERVICES            :
 (DHS)                                   :
                                         :
                                         :
                                         :    No. 1195 EDA 2018

               Appeal from the Order Entered March 12, 2018
    In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-DP-424-2018,
                         FID: 51-FN-467792-2009


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY BOWES, J.:                                FILED APRIL 22, 2019

      The Philadelphia Department of Human Services (“DHS”) appeals from

the March 12, 2018 juvenile court order of adjudication that denied its request

to find F.A. (“Mother”) a perpetrator of child abuse against her daughter, T.G.

We reverse in part and remand.

      During November 2009, T.G. was born four and one-half months

premature with myriad health conditions, including necrotizing enterocolitis,

chronic lung problems, heart arrhythmia, ventricular tachycardia, vision

delays, retinopathy, cerebral palsy, and microcephaly. Since 2010, she has

been treated by a team of twenty-one medical professionals at St.

Christopher’s Hospital for Children (“St. Christopher’s”) in Philadelphia. T.G.

has global developmental delay, and she is unable to speak or walk.         In

addition, T.G. suffers from a swallow dysfunction that has required the
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utilization of a specialized feeding tube. The child cannot chew or swallow

effectively and food and liquid gets misdirected to her trachea.

         DHS’s involvement with the family began on January 10, 2018, after it

received a December 28, 2017 child protective services (“CPS”) report alleging

that then-eight-year-old T.G. had missed several medical appointments and

was diagnosed with failure to thrive due to chronic malnutrition. The agency

asserted that Mother missed approximately eighteen appointments with T.G.’s

medical specialists at St. Christopher’s during that year. In addition, DHS

asserted that Mother neglected to provide T.G. early intervention services

(“EIS”) or register her in school. The two-week delay between the CPS report

and the initial meeting with Mother was based upon the agency’s inability to

contact Mother despite making several attempts to confront her at the family’s

residence, leaving correspondence for her, and talking to other family

members.       When the agency finally located Mother and scheduled an in-

person meeting with her and T.G., the conference was twice rescheduled

before it occurred on January 10, 2018.       Following that meeting, Mother

rejected DHS’s subsequent attempts to meet with her in the home. Instead,

she advised the agency, “No, it’s okay, I’ll see you in court.” N.T., 3/12/18,

at 74.




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       Following DHS’s investigation, the CPS report was indicated for serious

physical neglect based upon Mother’s failure to provide medical care. 1          In

addition to malnutrition, the investigative assessment highlighted that, due to

T.G.’s failure to attend physical therapy and orthopedic appointments, the

child’s limbs had contracted, i.e., the joints had stiffened into an unnatural

positon. The St. Christopher’s staff opined that T.G.’s ankles might have to

be broken in order to correct her orthopedic condition.

       On February 27, 2018, DHS filed a dependency petition and asserted

that Mother’s physical neglect of T.G. was tantamount to child abuse. During

the ensuing hearing, DHS presented the testimony of Renee Turchi, MD, the

Medical Director of the Center for Children and Youth and Special Healthcare

Needs at St. Christopher’s, and Melanie Davis, the DHS investigator. Mother

testified on her own behalf.

       As it relates to the issues raised in this appeal, Dr. Turchi testified that,

between 2013 and March 12, 2018, T.G. attended only twenty-five of ninety-

two medical appointments.           She also indicated that T.G. was drastically

underweight. Indeed, as of the date of the evidentiary hearing, eight-year-

old T.G. weighed 15.6 kilograms (approximately thirty-four pounds).            That

weight corresponds to the average three-year-old child, and it is four standard

____________________________________________


1 A CPS report is “indicated” where “an investigation by the department or
county agency determines that substantial evidence of the alleged abuse by a
perpetrator exists based on . . . (i) [a]vailable medical evidence[;] (ii) [t]he
child protective service investigation[; or] (iii) [a]n admission of the acts of
abuse by the perpetrator.” 23 Pa.C.S. § 6303(a)(1).

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deviations below the zero percentile for T.G’s age group. Dr. Turchi explained

that T.G.’s chronic malnutrition was abnormal notwithstanding T.G.’s

extensive medical diagnoses, and peculiar in light of the fact that T.G. received

a specialized formula delivered to her home without any expense to Mother.

She opined that T.G.’s failure to thrive was caused by Mother’s failure to feed

her daughter the prescribed amount. N.T., 3/12/18, at 25. In fact, noting

that the specialized formula provided “one and [one-]half times the calories

per ounce” than the typical mixture, she concluded, “there’s no reason why

[T.G.], given the proper calories, would not be gaining weight.” Id. at 60-61.

Dr. Turchi confirmed that Mother indicated that she was not feeding her

daughter the recommended amount of formula. Id. at 62-63.

        In addition, Dr. Turchi noted that T.G. had several cavities and missed

all five dental appointments scheduled since 2014. Id. at 26-27. Likewise,

she missed seventy-four of 126 physical therapy sessions scheduled since

2010.     Id. at 29.    The incomplete physical therapy contributed to the

contractures in T.G.’s legs, hips, and upper arms.      Id. at 30.    Dr. Turchi

highlighted that Mother declined EIS, which would have permitted T.G. to

receive services at home rather than at St. Christopher’s. Id. at 31-32, 45-

46.

        During her direct testimony, Mother countered that she did, in fact,

provide T.G. the recommended amount of formula, but she never received the

fortified formula that Dr. Turchi prescribed.      She also testified that her

inattentiveness to the calendar of appointments was the result of her struggle

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with the death of her husband and a recent cancer diagnosis. As it relates to

the contractures, Mother stated that T.G.’s orthopedic surgeon recently

ordered specialized braces for the child’s legs.

      After hearing the evidence and the parties’ countervailing arguments,

the juvenile court adjudicated T.G. dependent based on Mother’s neglect of

T.G.’s medical needs, but declined to find Mother a perpetrator of child abuse.

From the bench, the court stated, “it’s quite clear that there’s a failure to

thrive here due to [M]other’s medical neglect[.]” Id. at 101. Nevertheless,

the court concluded, “I am not finding child abuse.         I don’t see enough

evidence to support that.” Id. Thereafter, the juvenile court entered an order

of adjudication and disposition that memorialized its finding that T.G. was a

dependent child, and formally denied DHS’s request for a finding of child abuse

as to Mother.

      DHS appealed and complied with Pa.R.A.P. 1925(a)(2)(i) by filing a

concise statement of errors complained of on appeal wherein it asserted two

substantive issues.    DHS combined its issues for our review as follows:

“Whether the trial court erred as a matter of law and abused its discretion

when it declined to find child abuse against [Mother] where there was

uncontroverted evidence of serious physical neglect, and where the trial court

found that there was ‘failure to thrive . . . due to [Mother’s] medical neglect’”?

DHS brief at 6. The guardian ad litem submitted a letter to this Court, wherein

it joined the brief filed by DHS.

      Our standard of review is as follows:

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      [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 R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted); see also In

the Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015). “The trial court is

free to believe all, part, or none of the evidence presented and is likewise free

to make all credibility determinations and resolve conflicts in the evidence.”

In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).

      While dependency proceedings are governed by the Juvenile Act, 42

Pa.C.S. §§ 6301–6375, the Child Protective Services Law (“CPSL”) controls

determinations regarding findings of child abuse, which the juvenile courts

must find by clear and convincing evidence. See In the Interest of J.R.W.,

631 A.2d 1019 (Pa.Super. 1993). As the Supreme Court explained in In the

Interest of L.Z., supra at 1176, “[as] part of [a] dependency adjudication,

a court may find a parent to be the perpetrator of child abuse,” as defined by

the CPSL.     Instantly, DHS’s petition for an adjudication of dependency

asserted that Mother’s neglect of T.G.’s nutrition and physical wellbeing was

tantamount to child abuse.      Although the juvenile court adjudicated T.G.

dependent, it declined to level a finding of child abuse.      For the reasons

explained below, we find that the court abused its discretion in rejecting DHS’s

request to find Mother a perpetrator of child abuse.

      The CPSL defines child abuse, in pertinent part, as follows:



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      (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)(7). In this vein, the Juvenile Act describes “Serious

physical neglect” as, inter alia, “The failure to provide a child with adequate

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. § 6303(a).

      Similarly, 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


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                  (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
            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. § 302(b).      Instantly, in determining Mother’s culpability, the

material element of DHS’s allegation of child abuse is Mother’s serious neglect

of T.G.

      In rejecting DHS’s request for a finding of child abuse, the juvenile court

reasoned that the agency failed to demonstrate by clear and convincing

evidence that T.G.’s condition, i.e., her malnutrition and contractures, was the

result of “Mother’s inability to take the Child to medical appointments or not

feeding the Child properly.” Trial Court Opinion, 7/20/18, at 5. Specifically,

the court reasoned that “the child was born with such preexisting health

conditions that DHS was unable to show child abuse by clear and convincing

evidence because the Child’s hardships were just as likely or more likely to be

caused by [the] preexisting medical conditions than by child abuse or serious

physical neglect.” Id. In support of this rationale, the court highlighted that,

although Dr. Turchi treated T.G. for approximately eight years, she did not

contact DHS about the child’s condition until December 2017. Similarly, the

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court stressed that, in diagnosing T.G. with failure to thrive, Dr. Turchi “never

indicated that this was a child abuse” case. Id. Hence, the court reasoned

that T.G.’s frail physical condition was the result of Mother’s struggle with her

cancer diagnosis, chemotherapy treatment, and her husband’s recent death

rather than serious physical neglect.

      DHS argues that the juvenile court committed reversible error by

ignoring uncontroverted evidence of Mother’ reckless serious physical neglect

of T.G.     It asserts that, notwithstanding T.G.’s preexisting severe medical

conditions, Mother neglected to provide her daughter with the adequate

essentials of life, including food and medical care which not only threatened

the child’s well-being but impaired her development. Our review of the record

supports the agency’s contention.

      Instantly, it is beyond peradventure that Mother failed to provide T.G.

with the adequate essentials of life, i.e., food, and medical care. It is similarly

evident that Mother’s neglect endangered T.G.’s well-being.          The certified

record bears out that Mother missed more than two-thirds of T.G.’s medical

appointments and deprived T.G. of adequate nourishment, as evidenced by

the fact that the eight-year–old child weighed as much as the average three

year old.

      The juvenile court’s explanation and decision to adjudicate T.G. a

dependent child acknowledges Mother’s neglect and appears to recognize the

causal relationship between Mother’s behavior and her daughter’s appalling


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physical condition.   Indeed, during the hearing, the court observed “that

[T.G.] is not [receiving] the right amount of formula” and that “there’s no

question that there’s been medical neglect by [M]other.” N.T., 3/12/18, at

62, 100. Nevertheless, given the child’s preexisting conditions and Mother’s

personal problems, the juvenile court declined to find the palpable neglect was

tantamount to child abuse.    Central to the court’s decision was the trio of

considerations that: (1) T.G. suffered from extensive preexisting conditions;

(2) Dr. Turchi treated T.G. for eight years before she contacted DHS about

her concerns with Mother’s care; and (3) Dr. Turchi did not render a formal

diagnosis of child abuse. Furthermore, the juvenile court’s rationale is based

on the implicit finding that Mother’s acknowledged neglect of T.G. was the

result of her personal circumstances and, therefore, not intentional, knowing,

or reckless.   Our review of the certified record belies the juvenile court’s

perspective.

      As stated previously, a person acts recklessly in this context if she

consciously disregards a substantial and unjustifiable risk that the serious

neglect exists or will result from her conduct. As the statute requires, “[t]he

risk must be of such a nature and degree that, considering 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. § 302(b)(3).




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      During the evidentiary hearing, Dr. Turchi testified that Mother never

mentioned that she had any difficulty feeding T.G. or maintaining the

scheduled medical appointments. N.T., 3/12/18, at 24. Similarly, Mother did

not inform Dr. Turchi about her cancer diagnosis or her husband’s death until

the child’s penultimate medical appointment with Dr. Turchi. Id. at 17-18.

There was no medical explanation for T.G.’s malnourishment beyond Mother’s

failure to feed her daughter the prescribed specialized formula that was

shipped directly to the home. When asked whether she was concerned about

Mother’s ability to provide her daughter the appropriate nutrition, Dr. Turchi

opined, “we’re concerned . . . that [T.G. is] not getting everything that she

needs to sustain her weight.” Id. at 24. Dr. Turchi explained, “In this case,

. . . you have to assume . . . [T.G. is] not receiving everything that [we are]

prescribing.” Id. Ultimately, Dr. Turchi concluded, within a reasonable degree

of medical certainty that T.G. has not ingested the correct amount of formula

required to sustain an adequate weight. Id. at 25.

      In addition to the foregoing testimony about T.G.’s malnutrition and the

numerous missed appointments with health care specialists, dentist, and

physical therapists, Dr. Turchi testified about Mother’s failure to look after her

daughter’s well-being. Specifically, Mother neglected to arrange for T.G. to

obtain a custom wheelchair or activity chair for the home. Id. at 32-33. T.G.

is immobile and completely dependent upon other people to carry her about.

Id. at 48. Mother’s omission was troubling because increased mobility would


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have permitted T.G. to participate in activities, go outside, and attend school.

Id. at 34. Dr. Turchi explained, “ideally, for her quality of life, it would be

great for her to have equipment that allows her to [participate] . . . to the

best of her ability.”   Id.   Similarly, despite the medical staff’s repeated

suggestions that Mother enroll T.G. in public school, even recommending

specific schools that would be appropriate for the child’s needs, Mother

obstinately refused to register T.G. in any school, at least until after DHS

became involved with the family. Id. at 34-35.

      As it relates to the juvenile court’s specific concerns regarding Dr.

Turchi’s delay in contacting DHS about Mother’s medical neglect of T.G., Dr.

Turchi explained that, while the medical staff had concerns about T.G.’s

wellbeing for several years, it delayed contacting DHS in the hope that Mother

would ultimately rectify the situation. Dr. Turchi testified that her staff was

aware that Mother had experienced adversity and appeared overwhelmed at

times. However, it extended to Mother the benefit of the doubt that she would

rebound, overcome her problems, and care for her daughter.           Dr. Turchi

described how it was not until that penultimate medical appointment with T.G.

that she realized the urgency that would be required to counter Mother’s

prolonged neglect. She articulated this realization as follows:

            [W]ith all due respect to you at DHS, it’s not something our
      team generally likes to do unless we have to. So, yeah, I guess I
      have to -- and my team, you know, have to own the fact that
      some of this has been longstanding, and we just were hoping that
      things would turn around.


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             ....

             [T]he reason that our social worker on our team, you know,
      reached out recently was just the -- you know, the significant
      falling off the [growth] curve that was persistent. And we were
      trying to reach mom, and sent letters, and wanted to, you know,
      try to figure out again what had happened with the [weight] loss
      . . . and, you know, just in looking at her malnourished state, we
      just felt like it really -- we couldn't wait any longer.

             ....

            I -- I’m really concerned about [T.G.’s] state right
      now, and her growth . . . and her appointments and . . . how she
      looked when . . . I last saw her.

Id. at 41-42 (emphases added). To the extent that Dr. Turchi’s hesitation to

contact DHS was based upon her concern over Mother’s potentially adversarial

reaction to agency involvement, her reluctance proved prophetic.       Mother

discontinued using Dr. Turchi as T.G.’s primary care physician immediately

after St. Christopher’s communicated with DHS during December 2017. Id.

at 54, 56.

      As noted supra, Mother countered that she did not miss as many

appointments as Dr. Turchi indicated. Id. at 83. She stated the she may

have missed some appointments during 2016 due to her husband’s sickness

and ensuing death. Id. at 84. In addition, she battled stage III colon cancer

during 2017. The initial round of chemotherapy occurred between May and

November of that year. Id. Mother initiated a second round of chemotherapy

during March 2018, one week prior to the hearing. Id. As it relates to T.G.’s

current care, Mother testified that she has two adult children that are willing


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to assist her with transporting the child to her medical appointments. Id. at

84-85. She also indicated that she enrolled the child in school during February

2018, but was told that the child could not matriculate until she obtained a

personal nurse to provide individual care during the school day. Id. at 85.

Mother stated that she is in the process of completing the paperwork to obtain

the nurse. Id. at 86. She proffered no explanations as to why she did not

take any of these steps prior to DHS’s involvement.

      In addition, Mother testified that her daughter’s contractures can be

rectified without the surgical procedure that Dr. Turchi referenced. Id. at 87.

Likewise, in relation to T.G.’s malnutrition, Mother testified that she fed her

daughter the correct amount of formula and always followed Dr. Turchi’s

recommendations. Id. Paradoxically, Mother then testified that, while Dr.

Turchi advised her that St. Christopher’s would order the high calorie formula,

Mother did not receive it.

      During cross-examination, Mother conceded that she never asked either

of her adult children to transport T.G. to her medical appointments “[b]ecause,

I never wanted them to.” Id. at 89. In fact, even when Mother was too sick

or overwhelmed with emotional problems to take the child to appointments

herself, she elected to forego the siblings’ assistance. Id. Likewise, Mother

admitted that, while she is currently willing to accept in-home services, she

previously rejected entreaties to utilize identical services. Id. She explained,

“I’m dealing with my health issues, and I don’t want someone in and out of


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my house every couple of days.” Id. at 90. Similarly, Mother contested Dr.

Turchi’s testimony regarding the missed dentist appointments. She attested

that a dentist examined T.G. during 2016, and indicated that T.G. could not

receive dental care due to her inability to swallow. Id. 90-91. Mother also

stressed that T.G. attended physical therapy during 2014 and 2015, and that

she did not schedule sessions during 2016 because of complications T.G.

endured following an earlier surgical procedure related to the feeding tube.

Id. at 92.

      Even in light of Mother’s explanations for her inaction, the foregoing

evidence of record belies the juvenile court’s implicit conclusion that Mother’s

conduct was neither intentional, knowing, nor reckless.         Stated plainly,

Mother’s adamant refusal to accept assistance with maintaining T.G.’s

calendar of appointments and her affirmative decision to ignore the

recommendations of the medical staff treating T.G.’s serious medical needs is

evidence of her conscious disregard of the substantial and unjustifiable risk of

further impairing her daughter’s health.

      In In re L.Z., supra at 1175, our Supreme Court concluded that a

severe diaper rash and yeast infection in a twenty-one-month old child

constituted “serious physical neglect” justifying a finding of child abuse.

Significantly, in reaching its decision, the High Court noted that both the

treating physician and the juvenile court rejected the mother’s explanation for

the diaper rash. Conversely, in A.B. v. Department of Public Welfare, 869


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A.2d 1129, 1133-34 (Cmwlth. 2005), our sister jurisdiction concluded that,

without evidence of additional medical problems, a two ounce weight loss in a

three month-old child was not tantamount to serious physical neglect that

warranted classifying the mother as a perpetrator of child abuse. In as much

as both Dr. Turchi and the juvenile court concluded that Mother’s medical

neglect was responsible for T.G.’s severe malnutrition, the instant case aligns

with our Supreme Court’s holding in In re L.Z., rather than our sister court’s

determination in A.B.

      Between 2013 and 2018, Mother took her daughter to only twenty-five

of ninety-two scheduled medical appointments. Despite receiving assistance

with scheduling and transportation, she missed an astounding sixty-seven

appointments over that five-year period. Furthermore, over two-thirds of the

sixty-seven absences were unexcused because Mother neglected to provide

any explanation for the absences. During 2017, the year that DHS initiated

the CPS investigation, Mother presented T.G. for only two of nineteen medical

appointments, and all but one of those seventeen absences were unexplained.

While that year coincides with Mother’s chemotherapy treatments, she does

not explain why she refused to permit her adult children to accompany T.G.

to the appointments, why she declined in-home services that would have

alleviated the need to travel to St Christopher’s, or why she failed to attend

the appointments during the four preceding years. For example, although St.

Christopher’s scheduled fifty-eight medical appointments between 2014 and


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2015, Mother had more no-shows (twenty-two) than appointments that T.G.

actually attended (nineteen). Similarly, during 2016, T.G. attended only one

of the four scheduled appointments, and Mother neglected to inform the

physicians of any of those cancelations.

      Moreover, we observe that, while Mother’s physical and mental health

problems arguably may have impacted her ability to attend medical

appointments, it does not explain Mother’s failure to feed her child as the

medical team recommended.        The trial court comprehended this reality,

stating “There’s clearly medical neglect here, and it’s been going on for a

while[.] . . .   [T]here’s no question that there’s been medical neglect by

[M]other.” N.T., 3/12/18, at 100.

      Dr. Turchi advised Mother of the consequences of failing to comply with

her daughter’s feeding protocol.    Nevertheless, Mother failed to inform Dr.

Turchi of any difficulties with following the established regimen. While Mother

testified that she fed her daughter in accordance with the recommended

schedule, she stated that she never received the fortified formula that Dr.

Turchi prescribed to combat T.G.’s failure to thrive. Pointedly, however, even

to the extent that Mother’s assertion is accurate, Mother chose not to inform

anyone of that development. Thus, rather than alert the medical staff to her

dilemma, Mother elected to continue the prior feeding regime, which had been

proven to be an inadequate solution to T.G.’s malnutrition. In this extreme

situation, where the eight–year-old child suffers from chronic malnutrition to


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the degree that a fortified diet was essential, Mother’s omission is no less

egregious than a willful refusal to provide the required nourishment. In either

scenario, whether through malfeasance or nonfeasance, the fact persists that

Mother, the sole person responsible for T.G.’s sustenance, failed to provide

T.G. with the necessary nutrition. At a minimum, Mother’s disregard evinces

a “gross deviation from the standard of conduct that a reasonable person

would observe in [her] situation.”       18 Pa.C.S. § 302(b)(3) (defining

recklessness).

      While we are sympathetic to the burdens that Mother faced during 2016

and 2017, her mental and physical health problems do not negate the prior

years of neglect that the eight-year-old child endured. Due to T.G.’s existing

conditions, Mother was required to provide her daughter heightened medical

care. Regardless of Mother’s personal issues, she was derelict in caring for

T.G. The child is emaciated and even if T.G. does not require an invasive

corrective procedure to rectify the failed physical therapy, under the most

favorable scenario, she will be required to wear braces on her legs. However,

Dr. Turchi explained that even a passive measure may necessitate a

prerequisite surgery because the child’s feet are misaligned. Thus, contrary

to the juvenile court finding of fact, T.G.’s current physical state is not a

consequence of her premature birth, and her preexisting conditions caused

neither her chronic malnutrition nor her contracted limbs.




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      In actuality, the certified record confirms that T.G.’s current conditions

are the direct result of Mother’s conscious disregard of the substantial and

unjustifiable risk that her neglect of T.G.’s essential needs would impair her

health and development. Dr. Turchi testified that Mother, rather than any

preexisting condition, caused T.G.’S malnutrition. While the trial court was

not required to accept Dr. Turchi’s expert medical opinion, the trial court’s

countervailing conclusion must be supported independently by the record.

Compare In re Bosley, 26 A.3d 1104, 1111 (Pa.Super. 2011) (“[A] trial

court has discretion to accept or reject a witness’ testimony, including that of

an expert witness, and is free to believe all, part, or none of the evidence

presented.”), with Nomland v. Nomland, 813 A.2d 850, 854 (Pa.Super.

2002) (“To say that a court cannot discount uncontradicted evidence,

however, is merely to rephrase the requirement that a [trial] court’s

conclusion have competent evidence to support it.”). Instantly, the certified

record is bereft of any evidence that would sustain the court’s conclusion that

eight-year-old T.G.’s current diagnosis of failure to thrive is the result of

preexisting conditions.   To the contrary, the certified record supports the

expert conclusion of Dr. Turchi.

      Mother’s lack of attention to T.G.’s feeding program was appalling and

she essentially abandoned her daughter’s medical care and physical therapy.

Even accepting that Mother was too sick or overwhelmed to bring her daughter

to medical appointments, there is no dispute that she rejected all efforts to


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have other people transport T.G. to the hospital or have the services

performed in her residence. Thus, in order to benefit Mother while Mother

coped with her personal problems, T.G. was denied the basic essentials of life.

The failure to provide T.G. with adequate food or medical care is tantamount

to serious physical neglect insofar as it threatened the child’s well-being and

impaired her health and development.          Accordingly, the record does not

support the juvenile court’s decision to forgo finding that Mother’s neglect was

tantamount to child abuse pursuant to § 6303(b)(1).

      Likewise, we are not persuaded by the juvenile court’s references to Dr.

Turchi’s hesitation to contact DHS about T.G’s condition and the omission of a

former diagnosis of child abuse.        Dr. Turchi explained her reluctance.

Specifically, she attempted to give Mother the benefit of the doubt that Mother

would rectify the deficiencies and the doctor made repeated outreach to assist

Mother in that endeavor. However, after observing the extent to which T.G.’s

malnourishment had progressed, Dr. Turchi immediately alerted DHS. As it

relates to the absence of a medical diagnosis, in describing the cause of T.G.’s

physical condition, Dr. Turchi testified within a reasonable degree of medical

certainty that the diagnosis of malnutrition was related to Mother’s failure to

feed T.G. the necessary formula. Regardless of whether Dr. Turchi made a

medical diagnosis of child abuse in these circumstances, it was error for the

trial court to ignore Mother’s responsibility for T.G.’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.

      For all of the foregoing reasons, we reverse the portion of the juvenile

court’s March 12, 2018 order of adjudication and disposition that denied DHS’s

request for a finding of child abuse as to Mother. The order of adjudication

and disposition is affirmed in all other respects.

      Order reversed in part and remanded for further proceedings consistent

with his opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/19




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