In the Interest of: M.L., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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