J-S82002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: N.R. , A               :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: B.W., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2005 EDA 2018

                 Appeal from the Order Entered June 18, 2018
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-DP-0002587-2017


BEFORE:      LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 24, 2019

        B.W. (Mother) appeals from the trial court’s order adjudicating her then-

eighteen-month-old child, N.R. (born 3/16), dependent and making a finding

of child abuse and aggravated circumstances1 under the Juvenile Act (the

Act).2 After careful review, we affirm.

        On September 22, 2017, the Philadelphia Department of Human

Services (DHS) received a Child Protective Services (CPS) report alleging that

Father3 left Child, who was in Father’s care, for an unknown period of time as

Child drank a soda while lying on Mother and Father’s bed.         When Father

returned to the bedroom, Child was not breathing and was beginning to turn
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1 See 42 Pa.C.S. § 6341(2)(c.1) (aggravated circumstances after child
adjudicated dependent).

2   42 Pa.C.S. §§ 6301-6375.

3   Father is not a party to this appeal.
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* Retired Senior Judge assigned to the Superior Court.
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blue.    Father attempted to resuscitate Child; Child vomited and began

breathing irregularly. Child ultimately stopped breathing and Father called 9-

1-1. Child was transported to St. Christopher’s Hospital for Children’s (St.

Christopher’s) emergency room where he was minimally responsive and was

breathing in a way that indicated something was blocking his airway. Child’s

pupils were dilated; Child was administered epinephrine and Narcan. 4         He

responded positively by crying after he received the Narcan. Father admitted

to DHS that he had left Child unattended at time of the incident. Both Mother

and Father admitted that they kept Percocet in their bedroom nightstand

drawer. Mother also admitted that there may be other opioids in the home.

Mother was not home at the time of the incident. The hospital report certifies

that Child was admitted to the hospital in serious or critical condition due to

opioid ingestion and that the incident was classified as a “near fatality.”

        On September 26, DHS obtained an order of protective custody for

Child and he was placed in a foster home due to safety concerns. On October

3, 2017, DHS filed a dependency petition with regard to Child, which also

sought a finding of aggravated circumstances and child abuse against parents.

On February 26, 2018, the court held an adjudicatory/child abuse hearing

where Mariada Elizabeth Lind, M.D., an expert in pediatric child abuse,

testified with regard to the circumstances surrounding Child’s admission to St.

Christopher’s and his ultimate medical diagnosis. On June 18, 2018, the court
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4 Narcan is a nasal spray that is used to counteract the life-threatening effects
of an opioid overdose.

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held another adjudicatory hearing, where DHS worker Caitlin McGilloway, who

was assigned to investigate Child’s case testified. At the conclusion of the

hearing, Child was adjudicated dependent and the court made findings of child

abuse and aggravated circumstances with regard to Mother and Father. The

court’s order also stated that reasonable efforts shall continue to be made to

reunify Child with Mother and Father.

       Mother filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

       Mother presents one issue for our consideration: Whether the evidence

was insufficient for the court to find aggravated circumstances and child abuse

by clear and convincing evidence. Appellant’s Brief, at 3.5

       The standard of review in dependency cases requires an appellate
       court to accept 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. The appellate court reviews for abuse of
       discretion. In dependency proceedings the scope of review is
       broad.

                                           *     *   *

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5  Mother’s Rule 1925(b) statement does not raise the issue regarding
sufficiency of the evidence with regard to the court’s finding of child abuse.
Thus, we find that claim waived and confine our review to the propriety of the
court’s finding of aggravated circumstances. See Pa.R.A.P. 1925(b)(4)(vii)
(stating that “[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); see
also Appellant’s Pa.R.A.P. 1925(b) Statement (“The evidence was insufficient
for the court to find aggravated circumstances by clear and convincing
evidence.”).


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      Although bound by the facts, the appellate court is not bound by
      the trial court's inferences, deductions, and conclusions
      therefrom; the appellate court must exercise independent
      judgment in reviewing the court's determination, as opposed to
      its findings of fact, and must order whatever right and justice
      dictate.

In the Interest of J.M., 166 A.3d 408, 416 (Pa. Super. 2017) (citations

omitted).

      The Act provides that a dependency petition may allege “aggravated

circumstances” relating to an allegedly dependent child. 42 Pa.C.S. § 6334(b).

The Act defines “aggravated circumstances” as “[a]ny of the following

circumstances”:

      (1) The child is in the custody of a county agency and either:

         (i) the identity or whereabouts of the parents is unknown
         and cannot be ascertained and the parent does not claim
         the child within three months of the date the child was taken
         into custody; or

         (ii) the identity or whereabouts of the parents is known and
         the parents have failed to maintain substantial and
         continuing contact with the child for a period of six months.

      (2) The 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.

      (3) The parent of the child has been convicted of any of the
      following offenses where the victim was a child: [list of offenses
      omitted].

      (4) The attempt, solicitation or conspiracy to commit any of the
      offenses set forth in paragraph (3).

      (5) The parental rights of the parent have been involuntarily
      terminated with respect to a child of the parent.




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       (6) The parent of the child is required to register as a sexual
       offender . . . or to register with a sexual offender registry in
       another jurisdiction or foreign country.

Id. § 6302 (emphasis added).            Aggravated physical neglect is defined as

“[a]ny omission in the care of a child which results in a life-threatening

condition or seriously impairs the child’s functioning.” Id.

       Instantly, the trial court accorded great weight to the testimony of two

witnesses at the adjudicatory hearings, Dr. Mariada Elizabeth Lind and Ms.

Caitlin McGilloway. Doctor Lind,6 an expert in pediatric child abuse who is

employed by St. Christopher’s Hospital, testified that upon admission to St.

Christopher’s, Child displayed dilated pupils, respiratory depression, and

nervous system depression -- all indicators of an opioid overdose.           N.T.

Adjudicatory/Child Abuse Hearing, 2/26/18, at 24.             When Narcan was

administered to Child, he responded positively. Id. Doctor Lind testified that

the toxicologist7 diagnosed Child with an “overdose of opioid or related

narcotic,” id. at 25, and that a possible cause for the overdose was that



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6Doctor Lind did not see Child when he was initially admitted to the emergency
room at St. Christopher’s Hospital. However, when Child followed up at the
Child Protection Program Clinic at the hospital, Dr. Lind’s nurse practitioner
saw him and Dr. Lind reviewed Child’s case with the nurse practitioner. N.T.
Adjudicatory/Child Abuse Hearing, 2/26/18, at 14.

7 Although Child’s toxicology results did show a positive result for opioids, Dr.
Lind testified that often times the opioid exposure is from a synthetic drug
which would not show up on a urine or drug screen. N.T. Adjudicatory/Child
Abuse Hearing, 2/26/18, at 46-47.


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opioids, kept in Mother and Father’s bedroom nightstand, were in the soda

Child was drinking on Mother and Father’s bed. Id. at 32-33.

       At the June 16, 2018 child abuse hearing, DHS investigator Caitlin

McGilloway testified that she interviewed Mother at St. Christopher’s Hospital

on the date Child was admitted for the suspected opioid overdose. Mother

told McGilloway that drugs were kept in the nightstand adjacent to the bed

where Child was found unresponsive, that she was unable to explain the

source of the drug prescription, and that Child often tried to take Percocet

from the nightstand. McGilloway testified that she also interviewed Father on

the same date and that he appeared groggy and confused, he admitted to

having pills but could not explain the source, and he admitted that he gave

Child soda on the day of the overdose incident.        Finally, Ms. McGilloway

testified that Child’s home was dirty, cluttered and roach infested, that

Grandfather, a DHS-indicated perpetrator of child abuse, lived in the Child’s

home, and that Mother wanted to remain with Father.

       Based upon this testimony, the court concluded that:

       Mother had failed to provide proper care and supervision for . . .
       Child justifying the dependency adjudication.     Likewise, the
       testimony and documentation      [8]  provided to the court
       demonstrated that Mother (by allowing the Child to live in a filthy
       home, with easy access to opioids resulting in the Child’s near

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8 These documents included multiple DHS reports, a CPS report, a hospital
protection program report, toxicology consultation reports, and Father’s
criminal court summary and criminal dockets.



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       death from opioid toxidrome[9]) justified this court finding child
       abuse as well as aggravated circumstances.

Trial Court Opinion, 9/28/18, at 8-9.            We find the record supports this

determination and the court’s conclusions of law were not an abuse of

discretion. See In the Interest of L.Z., 111 A.3d 1164, 1184-85 (Pa. Super.

2015) (evidence that child suffered injury that would not ordinarily be

sustained or exist “except by reason of the act or omissions of the parent or

other person responsible for the welfare of the child” sufficient to establish

that parent or responsible person perpetrated abuse).

       Here, Child was unresponsive when he arrived at the emergency room

at St. Christopher’s Hospital. He showed signs of severe respiratory distress,

did not react to the administration of epinephrine, and ultimately responded

positively when he was given Narcan. The emergency room report certified

Child as a “near-fatality.” N.T. Adjudicatory/Child Abuse Hearing, 6/18/18, at

12. As the court noted, while Father contended that this may have been “an

accident,” id. at 65, Mother and Father’s actions clearly amounted to gross

recklessness. Id. Father is considered to be an active opiate user and Mother

wishes to remain with him. Both parents admit that illegal drugs are kept in

the home and that their eighteen-month-old Child tries to take Percocet from

their nightstand.

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9 A toxidrome is a clinical constellation of signs and symptoms that is very
suggestive of a particular poisoning or category of intoxication.
https://www.sciencedirect.com/topics/pharmacology-toxicology-and-
pharmaceutical-science/toxidrome (last visited 1/9/19).


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      Based upon the record, the court was correct in concluding that Child’s

injuries occurred, in part, as a result of Mother’s lack of parenting awareness

while Child is in Father’s care, as well as her own parental omissions. Mother’s

lack of supervision put Child’s physical integrity at risk, resulting in a life-

threatening condition. Accordingly, there was clear and convincing evidence

that aggravated circumstances existed pursuant to section 6302(2).

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/19




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