In the Interest of: J.H., Appeal of: H.J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.H, A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: H.J., MOTHER :
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:
:
:
: No. 960 WDA 2022
Appeal from the Order Entered August 4, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-DP-45-2022
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 15, 2023
H.J. (Mother) appeals from the August 4, 2022 order of the Court of
Common Pleas of Westmoreland County (trial court) designating her as a
perpetrator of child abuse against J.H. (Child) pursuant to the Child Protective
Services Law (CPSL).1 We affirm.2
I.
We glean the following facts from the certified record. The
Westmoreland County Children’s Bureau (WCCB) took emergency protective
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* Retired Senior Judge assigned to the Superior Court.
1 23 Pa.C.S. §§ 6301 et seq.
2 J.H. (Father) has also appealed the child abuse determination entered
against him at the same proceeding. We address his appeal at 961 WDA 2022.
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custody of Child on April 1, 2022, after he had been hospitalized for severe
malnourishment. It subsequently filed for dependency and sought a finding
of abuse against Mother and Father.3 Mother and Father stipulated to
dependency but opposed the finding of abuse.
At the dependency hearing, WCCB sought to introduce court records
from Clackamas County, Oregon, establishing that Mother had entered a guilty
plea to child neglect in 2012. It also produced records from Oregon’s
Department of Human Services (DHS) establishing that findings of abuse had
previously been entered against Mother in four cases. Mother objected to the
admission of these records on Rule of Evidence 404(b) and relevancy grounds.
The trial court admitted the criminal records and admitted the DHS records
for the limited purpose of establishing that prior findings of abuse had been
entered, but did not admit the narrative portions of the records. Upon
Mother’s request, the trial court also took judicial notice of the emergency
declarations issued by the governor in response to the covid-19 pandemic.
WCCB called Dr. Adelaide Eichman (Dr. Eichman) from the Division of
Child Advocacy at Children’s Hospital of Pittsburgh to testify regarding their
treatment of Child. Child was admitted to the hospital on March 24, 2022,
and was diagnosed with severe failure to thrive. He was 12 months old,
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3WCCB filed dependency petitions for four of Mother and Father’s children.
Only the finding of abuse as to Child is at issue in this appeal.
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weighed 15.1 pounds and had developmental delays. A large flat spot on the
back of his head caused abnormal development in his face. His hair was
thinning and matted on the back of his head and he had developed lanugo, a
very fine hair, on his back. He was unable to sit up on his own and his weight
was below the third percentile for children his age. A skeletal survey revealed
he had osteopenia or thinning of his bones, and brain imaging showed he had
lost brain volume. These conditions result from chronic malnutrition or
starvation.
Dr. Eichman testified that the cause of Child’s medical problems was
chronic underfeeding for a period of months, and she could not say whether
the loss of brain volume would be reversible. She opined that Child had
suffered from neglect and said that once he was fed regularly he began gaining
weight. When he was discharged from the hospital after four days, he weighed
16.7 pounds and by mid-April he weighed 19 pounds.
Upon speaking to Mother, Dr. Eichman learned that she fed Child
powdered milk instead of powdered formula, which is not recommended for
children under one year old. Mother said she fed Child two to four ounces of
milk every two to four hours, except overnight, which was not consistent with
Child’s severe malnourishment. Mother told Dr. Eichman that she had not
been able to obtain medical insurance for Child after moving to Pennsylvania.
Dr. Eichman testified that she did not believe insurance was necessary to
schedule an early intervention evaluation for a child and insurance would not
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have been required for Child to be seen in the emergency room. The hospital
additionally has employees who could have helped Mother and Father enroll
Child in medical insurance if necessary.
Jarrett Dorazio (Dorazio), a physician assistant who evaluated Child
prior to his hospitalization, testified that his office does not require insurance
to see a patient, and that they direct patients without insurance to state
resources where they can obtain it. Dorazio first saw Child on March 10, 2022,
for a well visit that Mother and Father were required to schedule due to WCCB
involvement with one of their other children. Dorazio was concerned about
Child’s muscle tone, neurologic and gross and fine motor development. Child
could not sit up or push up from his stomach on his own, while most children
at his age could walk. He was not using words and would stare at the wall
without reacting to noises or Dorazio’s voice. His arms and hands remained
in a clenched position and would return to that stance if Dorazio attempted to
move them. At the first visit, Child weighed 14.6 pounds. Dorazio diagnosed
Child with failure to thrive, low muscle tone and neglect, and recommended
that Mother have him evaluated by the Children’s Institute and then return for
a follow-up visit. He recommended applying for Women, Infants and Children
(WIC) benefits, and Mother said that she was unable to get WIC and that
formula was expensive. Dorazio testified that he did not make a ChildLine
report after Child’s first visit because he believed Child had not been seen by
a doctor in approximately ten months and he wanted to give Mother and
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Father a chance to make a good faith effort at complying with his
recommendations.
Dorazio saw Child for a follow-up visit on March 24, 2022, and he had
gained approximately half-a-pound. Due to the low weight gain, Dorazio
recommended that Mother admit Child into the hospital. Child gained weight
more rapidly after his hospitalization and at a well-visit on April 15, 2022, he
weighed 19.10 pounds. At his most recent visit in May 2022, Child was able
to sit up with some assistance, was making babbling noises and was
interacting with his surroundings and reaching for his toes and ears.
Rachel Menhorn (Menhorn), a school nurse who worked with one of
Mother and Father’s other children, testified that she provided them with
written information regarding the Children’s Health Insurance Program (CHIP)
and the online application process on two occasions. She also spoke with
Mother directly about CHIP multiple times. Mother did not ask for any help
with the application but told Menhorn in January 2022 that the state was
giving her the “runaround.” N.T., 5/25/22, at 119.
Colleen Flynn (Flynn) of the Children’s Institute testified that she opened
a case with the family in the Star Babies program, which provides an intensive
in-home family services specialist. She began working directly with the family
in mid-March and first saw Child shortly before his hospitalization. She said
he was emaciated and that his appearance was shocking. Mother told Flynn
that Child had recently been to the doctor but did not consider Dorazio’s
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recommendations urgent. She said she did not have time to make phone calls
for Child’s care. She had scheduled an appointment with a gastroenterologist
but had not followed up with a nutritionist or feeding specialist. Flynn said
that Child had a blank stare, lanugo on his back, and his hands and fingers
were curled and stiff. He did not smile or make eye contact and would cry
when he was touched.
After Child was discharged from the hospital, Flynn began visiting the
family to weigh Child every day, with the understanding that if he lost weight,
WCCB would intervene. The weigh-ins took place as planned for several days
but Mother missed the appointment on April 1, 2022. She texted Flynn
throughout the day to push the visit back and said that she was running an
errand in Pittsburgh. Flynn was not able to complete the visit and WCCB took
custody of the children that day. Flynn opined that Mother did not understand
the urgency of Child’s condition. Flynn spoke with Father once on the phone
prior to Child’s hospitalization, and he wanted to know why the doctor wanted
to send Child to the hospital.
Amanda Karas (Karas), a caseworker for WCCB, opened a case with the
family in January 2022 following a referral related to one of Father’s other
children. At that time, Mother and Father were living with their four children
and another adult couple with two children. Mother requested parenting
services and services for children with special needs because she was
concerned about the development of Child and his sister. Karas did not
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perform a home visit with the family until after Child was released from the
hospital at the end of March, but prior to that she was in contact with the Star
Babies staff about the family.
Karas learned that the last time Child had seen a doctor was in July 2021
when the family still lived in Oregon. Mother and Father reported that they
had taken Child to a local emergency room for a cough in July 2021, but the
hospital’s records did not confirm any visit had taken place. Mother and
Father also told Karas that they had not taken Child to the doctor because
they did not have health insurance. When WCCB became involved with the
family, Mother was the primary caregiver. They had previously left the
children with one of the other adults in the household while Mother and Father
worked, but Mother quit her job in October because they were concerned that
the other adult was not providing appropriate care.4 Father continued to work
full-time.
After Child’s release from the hospital, Mother and Father attended an
evaluation to qualify for WIC. They told Karas that they had previously
received WIC benefits, but WIC staff reported that they had no involvement
with the family outside of the first evaluation. Mother and Father told Karas
that WIC had required regular weight checks that were too strenuous so they
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4This adult continued to live with the family and help with caretaking into
2022. She was eventually reported for abuse of one of the other children via
ChildLine and faced criminal charges. She then moved out of the home.
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discontinued the program. WIC staff confirmed that recipients usually have a
monthly evaluation that includes a weigh-in.
Mother and Father were able to successfully obtain health insurance
shortly before Karas began working with the family at the end of March.
Mother reported to Karas that she had difficulty applying for insurance through
the state and providing all the necessary documentation. Mother submitted
exhibits at the hearing showing that she applied for health insurance through
the Pennsylvania DHS in July and August 2021, but the applications were
rejected because she did not provide required records. Mother told Karas that
she attempted to send the documents and speak to DHS on the phone but
was not able to obtain insurance.
Joe Bowles (Bowles), one of the individuals who lived with Mother and
Father, testified on their behalf. He said Mother quit her job in October 2021
to stay home, though she earned money baking cookies at home and
delivering them to customers. He said that Child had difficulty with formula
and was spitting it up a lot, but Mother switched formulas and that helped the
issue. He said Mother and Father applied for health insurance and called DHS
multiple times about why their applications were rejected. He further testified
that Mother called providers about obtaining health insurance for the children
but it was very expensive. He said Mother did take Child to the hospital at
one point for his cough.
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Following the hearing, the trial court adjudicated Child dependent and
entered an order determining Mother perpetrated abuse pursuant to the CPSL.
Mother timely appealed and she and the trial court have complied with Pa.
R.A.P. 1925.
II.
Mother raises three issues on appeal: whether the trial court abused its
discretion in finding that WCCB presented clear and convincing evidence that
she had abused Child; whether the trial court abused its discretion in admitting
evidence of her criminal conviction and the findings of abuse entered against
her in Oregon; and whether the trial court abused its discretion by failing to
consider the shutdowns related to the covid-19 pandemic as an exception to
the finding of abuse under the CPSL.5
A.
Mother first argues that the evidence at the dependency hearing did not
establish that she acted intentionally, knowingly or recklessly to perpetrate
abuse against Child. She argues that she attempted to get medical care for
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5
The 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.
Interest of K.D., 237 A.3d 566, 568 (Pa. Super. 2020) (citation omitted).
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Child by first seeking health insurance and contends that none of the witnesses
testified that she engaged in abuse, but rather that the source of Child’s
medical issues was neglect. She points out that Dorazio did not think it was
necessary to file a ChildLine report the first time he treated Child, and that
the hospital released him back into her care after his treatment.
A determination that a person perpetrated abuse against a child must
be supported by clear and convincing evidence. Interest of T.G., 208 A.3d
487, 490 (Pa. Super. 2019). The definition of child abuse under the CPSL
includes intentionally, knowingly or recklessly causing “serious physical
neglect of a child.” 23 Pa.C.S. § 6303(b.1)(7).6 It defines serious physical
neglect as follows:
Any of the following when committed by a perpetrator that
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:
***
(2) The failure to provide a child with adequate essentials of
life, including food, shelter or medical care.
23 Pa.C.S. § 6303(a). The statute further defines “recklessly” with reference
to the Crimes Code’s definition of the term:
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6 The trial court’s order does not specifically identify the subsection of the
definition of child abuse that it found WCCB had established by clear and
convincing evidence. However, it did state that “neglect” by Mother and
Father “caused severe malnutrition” of Child. Order, 8/4/22 at 3.
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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.
Id. (citing 18 Pa.C.S. § 302). Severe neglect resulting in failure to thrive can
be the basis for a finding of abuse under subsection 6303(b.1)(7). Interest
of T.G., supra, at 494-95 (finding clear and convincing evidence of severe
physical neglect when mother missed medical appointments for child and did
not comply with treatment recommendations, resulting in failure to thrive).
The record overwhelmingly supports the trial court’s determination that
Child suffered serious physical neglect by Mother’s actions or inactions. The
professionals who evaluated Child or visited with the family in their home
uniformly described Child as emaciated, low-energy, with low muscle tone and
as being significantly developmentally delayed compared to the average 12-
month-old child. At 15.1 pounds, Child’s weight was well below the third
percentile for children of his age, and he was unable to support his head while
being held by Mother or sit up on his own. He had a flat spot on the back of
his head that resulted in disfiguration to his facial features. He had not
reached average benchmarks, such as walking or crawling, and did not make
eye contact or typical verbalizations for a child his age. His condition was
immediately apparent to the naked eye of the individuals who evaluated him.
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Moreover, further testing revealed that he had lost brain volume and
experienced osteopenia and lanugo. All of these conditions are caused by
malnutrition, and Dr. Eichman was unable to say whether the loss of brain
volume would ultimately be reversible. After enumerating the many medical
and developmental issues Child was exhibiting, Dr. Eichman testified that he
had been diagnosed with failure to thrive and had been chronically underfed
for a period of months. Once he received adequate nutrition, he had no
trouble gaining weight. She concluded that “essentially from a medical
standpoint, the baby just needed to be fed.” N.T., 5/25/22, at 39. She further
stated, “I do want to underscore that neglect is not a benign process. It is
not any better or worse than physical abuse, for instance.” Id. at 56.
This evidence amply supports the trial court’s conclusion that Mother,
as Child’s caregiver, “consciously disregard[ed] a substantial and unjustifiable
risk” to his health and well-being by failing to feed him adequately for an
extended period of time. 18 Pa.C.S. § 302; 23 Pa.C.S. § 6303(a). The neglect
was immediately apparent to medical and WCCB professionals upon seeing
Child. While he was released to Mother and Father’s care after his first well-
visit and his hospitalization, this was only after they received counseling on
the next steps for his care and agreed to work with the Star Babies project
and comply with daily weigh-ins to monitor his progress. Less than a week
after his release from the hospital, Mother missed one of the required weigh-
ins, resulting in his removal. Finally, the medical professionals who testified
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at the hearing confirmed that Child would have received care regardless of
whether he had medical insurance. Her first issue merits no relief.
B.
Next, Mother argues that the trial court abused its discretion in
admitting evidence of her criminal conviction for neglect and the founded
reports of abuse against her in Oregon.7 She argues that the records were
from events too remote in time to be relevant, that their admission violated
Rule of Evidence 404, and that they contained double hearsay.
Under Rule 404(b), evidence of specific crimes or acts is admissible only
for limited purposes:
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or
act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.
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7 We review the trial court’s decision to admit this evidence for an abuse of
discretion. In re A.J.R.-H., 188 A.3d 1157, 1166 (Pa. 2018). “An abuse of
discretion is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Commonwealth v. Tyson, 119 A.3d 353, 357-58
(Pa. Super. 2015) (citation omitted).
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Pa.R.E. 404. In its opinion, the trial court concluded that the fact of the prior
criminal conviction and abuse findings was “relevant to show the absence of
mistake and a lack of accident as to [Mother and Father’s] treatment of
[Child], as well as their knowledge of the implications of an allegation of
abuse.” Trial Court Opinion, 10/25/22, at 4. It explained that “[t]he fact that
the Appellants have been through this process before was relevant to
demonstrating that their lack of adherence to the recommendations of Dr.
Eichman, [] Dorazio, and [] Flynn was, indeed, abusive to [Child].” Id.We discern no abuse of discretion. Mother’s criminal conviction and
findings of abuse in Oregon demonstrate that she had previously been
involved in child abuse investigations and should have appreciated the
seriousness of the concerns raised by WCCB and Child’s medical providers.
Despite detailed counseling by Dorazio regarding Child’s development delays
and nutritional needs, she continued to feed him so inadequately that he
gained only half-a-pound in the two weeks between appointments. Once he
was hospitalized and fed adequately, he gained approximately 1.5 pounds in
four days. Moreover, her caseworkers from WCCB and Star Babies
emphasized to her that daily weigh-ins were necessary to monitor Child’s
progress, and that he would be removed from her care if she was unable to
meet that requirement. Mother nonetheless chose to miss weigh-ins less than
a week after Child was returned to her care, resulting in his removal from her
home. The evidence of the prior findings of abuse supported the conclusion
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that Mother understood the importance of complying with these directives.
The trial court did not abuse its discretion in holding that the fact of the prior
conviction and findings of abuse, without reference to the narrative portions
of the documents, supported her knowledge, lack of accident and absence of
mistake failing to care for Child.
Additionally, the record belies Mother’s argument that the records were
inadmissible because they contained double hearsay. At the hearing and in
its subsequent order, the trial court specifically held that the narrative portions
of the reports would not be admitted. Compare In re A.J.R.-H., 188 A.3d
1157, 1169-70 (Pa. 2018) (finding that error in admitting double hearsay
narratives in agency reports was not harmless when the trial court relied on
the information therein when terminating parental rights). Rather, it admitted
only the fact of the criminal conviction and past founded reports to establish
knowledge and a course of conduct. Because the alleged double hearsay was
not admitted as evidence, no relief is due.8
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8 Additionally, the admittance of these records was harmless in the context of
the entire record. An error is not harmless and the appellant is entitled to a
new hearing if, “in light of the record as a whole, an erroneous evidentiary
ruling could potentially have affected the decision.” A.J.R.-H., supra, at 1170
(addressing harmless error in the context of a termination of parental rights
proceeding). The evidence that Mother perpetrated abuse against Child by
failing to provide him with adequate nutrition for months was overwhelming,
and the trial court noted in its opinion that the records from Oregon played a
de minimus role in its decision. See Trial Court Opinion, 10/25/22, at 4.
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C.
Finally, Mother argues that the trial court erred by failing to consider
environmental factors, namely, lack of health insurance and the covid-19
shutdowns, as rendering Child’s condition outside of her control. She
highlights that Pennsylvania was under a disaster declaration in July 2021 that
precluded her from visiting DHS offices to obtain health insurance for Child.
She maintains that she attempted to communicate with the department online
and by phone but was still unsuccessful.
The CPSL mandates that certain environmental factors outside of a
parent’s control cannot support a finding of abuse:
No child shall be deemed to be physically or mentally abused
based on injuries that result solely from environmental factors,
such as inadequate housing, furnishings, income, clothing and
medical care, that are beyond the control of the parent. . . .
23 Pa.C.S. § 6304(a).
The record is devoid of any evidence that the covid-19 pandemic
prevented Mother from obtaining medical care for Child or from feeding him
appropriately. While Mother requested that the trial court take judicial notice
of the governor’s covid-19 disaster declarations, she presented no evidence
that the shutdowns affected her ability to obtain health insurance or medical
care for Child. To the contrary, the documentation she submitted into
evidence revealed that she began the online process of applying for health
insurance and other benefits through the state in July 2021. She promptly
received notice that her application had been received and that she needed to
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submit additional documentation either in person, online or by mail or fax.
She was also required to complete an in-person interview.
Mother was then notified less than a week later that she qualified for
expedited Supplemental Nutrition Assistance Program (SNAP) benefits
amounting to $1,393 through the end of August 2021, but still needed to
provide additional documentation. She did not complete her required
interview by July 30, 2021, and was notified that she would need to do so by
August 13, 2021. She then received a second notification that she needed to
provide employment and income verification documents to qualify for cash
assistance, medical assistance and SNAP. When she did not provide the
requested documents, DHS notified her that her request was denied and that
she could appeal that decision.
Mother started the process anew in September 2021 and was again
notified that she needed to provide additional documentation to qualify for
medical assistance and SNAP. She was also notified that her SNAP benefits,
which she was apparently still receiving, would increase from $929 to $992
monthly in October. She provided no further documentation related to her
second application for benefits, but the record is undisputed that Child did not
have health insurance until March 2022.
These documents do not support Mother’s argument that she was
prevented from obtaining adequate health coverage for Child due to
government shutdowns, as she received prompt responses to both of her
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applications and was able to submit necessary documentation by mail or
online. She was able to complete the required interview by phone but there
is no record of her doing so for either application. She finally made the first
wellness appointment with Dorazio in March 2022 only after WCCB had
become involved with the family and required her to have check-ups for all of
the children. Dorazio testified that his office was not closed to the public
between July 2021 and March 2022, that he was able to see patients who did
not have insurance, and that the office employed individuals who would help
patients with insurance inquiries. Finally, Dr. Eichman testified that Child
would have been treated in any hospital emergency room even without
insurance, and his condition was so severe as to merit emergency treatment.
Based on this evidence, we cannot conclude that the disaster declarations
related to the covid-10 pandemic constituted an environmental factor
preventing Mother from obtaining medical care for Child. No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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