J-S28030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF : M.L., A MINOR                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF : R.T., FATHER

                                                       No. 3136 EDA 2015


               Appeal from the Order Entered September 10, 2015
              In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-DP-0001971-2015
                            FID: 51-FN-001643-2015


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 29, 2016

        R.T. (Father) appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, making a finding of child abuse with

aggravated circumstances and medical neglect of his minor child, M.L.

(Child).    The order also stated that no further efforts would be made to

reunite Father and Child.1 After careful review, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   We note that this order is appealable as a collateral order, which is one
that is “separable from and collateral to the main cause of action where the
right involved is too important to be denied review and the question
presented is such that if review is postponed until final judgment in the case,
the claim will be irreparably lost.” Pa.R.A.P. 313; see In re R.C., 945 A.2d
182, 184 (Pa. Super. 2008) (“If this Court were to wait to address the
finding of aggravated circumstances until [Children and Youth Services] files
a petition to involuntarily terminate appellant’s parental rights, . . . appellant
(Footnote Continued Next Page)
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      Child was born on February 8, 2013, at 26 weeks gestation, weighing

1 pound, 5.5 ounces.             Child suffered complications from prematurity,

including   trouble      with   feeding,    nasal   deformity,   intrauterine   growth

restriction, retinopathy of prematurity, chordee, and hypospadias. Child was

hospitalized from his birth in February 2013 until June 2013.             During this

time, Father received information regarding Child’s condition and proper

care. Father lived with Mother and Child from June 2013 to August 2013.

Thereafter, he typically saw Child on a monthly basis. Mother ordinarily took

Child to medical appointments; Father took Child to an appointment at least

once, on May 19, 2015.

      At a well visit on August 28, 2013, Child weighed 7 pounds, 4 ounces.

Child had missed multiple doctors’ visits, including urology and plastic

surgery appointments. E.L. (Mother) was informed that if Child continued to

miss appointments, he would be at risk of failure to thrive. On September

23, 2013, the Department of Human Services received a Child Protective

Services (CPS) report with allegations of medical neglect of Child by his

parents.    Thereafter, Child continued to miss many medical appointments.

He had poor growth due to a lack of proper caloric intake through his gastric

tube, which was placed so that he could receive food by a feeding pump,

because scheduled feedings were delayed or cut short.                 Child also was
                       _______________________
(Footnote Continued)

would lose the opportunity to challenge what most likely will be the very
basis for that petition.”).




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diagnosed with developmental speech and cognitive delays.                   Child was

placed in foster care on July 30, 2015, and began to gain weight at a much

faster rate.

         A hearing was held on September 10, 2015, at which all parties agreed

to an adjudication of dependency based upon present inability to care for

Child.     As to Child’s care up to that point, Father asserted that he was

ignorant of Child’s needs because he was a non-custodial parent, had poor

communication       with    Mother,     and    lacked   notice   of   Child’s   medical

appointments and services. The court made findings of child abuse involving

aggravated circumstances and medical neglect against both Father and

Mother.

         Father filed a timely appeal,2 raising the following issues for our

review:

         1. Did the [t]rial [c]ourt abuse its discretion in determining that
            [F]ather was [a] perpetrator by omission of child abuse?

         2. Did the [t]rial [c]ourt abuse its discretion in determining that
            aggravated circumstances existed as to [F]ather?

         3. Did the [t]rial [c]ourt abuse its discretion in determining that
            [Father] was a perpetrator by omission of medical neglect?

         4. Did the [t]rial [c]ourt abuse its discretion in determining that
            no new or additional reasonable efforts needed to be made by
            DHS to reunify the [C]hild with [F]ather?

Brief of the Appellant, at vii.

____________________________________________


2
    Mother did not file an appeal.



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        Our standard and scope of review are 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 R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

        Instantly, Father does not contest the        trial court’s finding of

dependency, which occurs where a child

        is without proper parental care or control, subsistence, education
        as required by law, or other 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.

42 Pa.C.S. § 6302. However, Father challenges the trial court’s findings of

child abuse by omission, medical neglect, and aggravated circumstances.

        Pursuant to the Child Protective Services Law,3 “child abuse” occurs

when a person knowingly, intentionally, or recklessly causes bodily injury to

a child or causes serious physical neglect of a child. 23 Pa.C.S. § 6303(b.1).

“Serious physical neglect” involves “failure to provide a child with adequate

essentials of life, including food, shelter or medical care.” Id. at § 6303(a).




____________________________________________


3
    23 Pa.C.S. §§ 6301-6386.



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        Similarly, the Juvenile Act4 indicates that “aggravated circumstances”

exist where “[t]he child or another child of the parent has been the victim of

physical abuse resulting in serious bodily injury, sexual violence or

aggravated     physical    neglect    by       the   parent.”   42   Pa.C.S.   §   6302.

“Aggravated physical neglect” involves “[a]ny omission in the care of a child

which results in a life-threatening condition or seriously impairs the child’s

functioning.” Id.

        Here, the record indicates that Child suffered from multiple birth

defects and other medical problems that remained inadequately addressed

while he was in his parents’ care. Child was also fed inadequately, such that

he failed to gain weight at an appropriate rate. As a result, it is clear that

Child suffered child abuse on the basis that he did not receive necessary

medical care.      See 23 Pa.C.S. § 6303.             Child’s functioning was seriously

impaired, since he was unable to grow at a normal rate and had untreated

developmental delays.         Thus, a finding of aggravated circumstances was

proper under the circumstances. See 42 Pa.C.S. § 6302.

        Despite clear indicators of abuse, Father asserted at the dependency

hearing that he was not responsible because he was unaware of Child’s

medical needs. On appeal, he also argues that Child’s care was beyond his

control.   Neither argument is availing, since Father had a duty to protect


____________________________________________


4
    42 Pa.C.S. §§ 6301-6375.



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Child from harm. See In re R.P., 957 A.2d 1205, 1212 (Pa. Super. 2008)

(“In determining whether there exists proper care, acts and omissions of a

parent must weigh equally since parental duty includes protection of a child

from the harm others may inflict.”).

      The record shows that Father was made aware of Child’s birth defects

and was instructed regarding his care after he was born. Father lived with

Child for periods of time, saw him on a regular basis, and took him to at

least one medical appointment.         Here, not only did Father fail to provide

Child with adequate medical care, he also failed to protect Child from

Mother’s neglectful and abusive behavior. Thus, Father’s omissions in caring

for Child resulted in abuse and aggravated circumstances as noted above.

See id.; see also In re L.Z., 111 A.3d 1164, 1184 (Pa. 2015)

(“[O]missions [include] situations where the parent or responsible person is

not present at the time of the injury but is nonetheless responsible due to

his or her failure to provide protection for the child.”).

      Finally, Father argues that the trial court abused its discretion in

determining that no efforts toward reunification of Father and Child are

necessary. While this issue is included in Father’s “Statement of Questions

on Appeal” in his brief, he fails to include any argument on this point. Thus,

the issue is waived on appeal.      See Pa.R.A.P. 2119(a) (each issue argued




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must be “followed by such discussion and citation of authorities as are

deemed pertinent”).5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




____________________________________________


5
  Moreover, we note that where “the court finds aggravated circumstances
exist, it is well within its discretion to order the cessation of reunification
services.” In re A.H., 763 A.2d 873, 878 (Pa. Super. 2000). Here, the
court found that aggravated circumstances exist; therefore, the court did not
abuse its discretion in concluding that reunification was not an appropriate
goal.



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