In the Int. of: W.C. a Minor, Appeal of: S.C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: W.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.C., MOTHER :
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: No. 126 EDA 2021
Appeal from the Order Entered December 8, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000103-2020
IN THE INTEREST OF: C.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.C., MOTHER :
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: No. 127 EDA 2021
Appeal from the Order Entered December 8, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000164-2020
IN THE INTEREST OF: W.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.C., MOTHER :
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: No. 128 EDA 2021
Appeal from the Order Entered December 8, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000103-2020
IN THE INTEREST OF: C.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
J-S16001-21
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APPEAL OF: S.C., MOTHER :
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: No. 129 EDA 2021
Appeal from the Order Entered December 8, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000164-2020
IN THE INTEREST OF: A.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.C., MOTHER :
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:
: No. 131 EDA 2021
Appeal from the Order Entered December 8, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000212-2020
IN THE INTEREST OF: A.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.C., MOTHER :
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: No. 132 EDA 2021
Appeal from the Order Entered December 8, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000212-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
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* Former Justice specially assigned to the Superior Court.
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MEMORANDUM BY BENDER, P.J.E.: Filed: August 12, 2021
S.C. (“Mother”) appeals from the December 8, 2020 orders adjudicating
W.C. (born in June of 2015), C.C. (born in May of 2016), and A.C. (born in
January of 2019) (collectively “Children”) as dependent and the victims of
child abuse. Mother also appeals from the orders finding aggravated
circumstances and directing that no efforts should be made to preserve the
family and unify Children with Mother.1 Following review, we affirm.
In January of 2020, the three Children became known to the
Department of Human Services (“DHS”) upon receiving a Child Protective
Report that A.C. was brought to St. Christopher’s Hospital for Children due to
a breathing difficulty. Upon examination, A.C. was found to be extremely
malnourished and was the size of an infant (about 9 pounds), although he was
one year old. It was determined that A.C. suffered from various other medical
issues and a failure to thrive, which were the result of neglect and/or abuse.
A.C.’s malnourishment was certified as a near fatality. DHS also received
reports that A.C.’s brother, C.C., who was three years old, only weighed about
22 pounds. However, A.C.’s other brother, W.C., who was four years old, was
morbidly obese, weighing approximately 139 pounds. It was further noted
that Mother and Maternal Grandmother had been Children’s caregivers, but
that they seemed unconcerned about Children’s conditions.
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1These appeals were consolidated by order of this Court on February 10,
2021, because they involve related parties and issues. See Pa.R.A.P. 513.
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An Order of Protective Custody (“OPC”) was obtained for each of the
Children, and they were placed in medical foster care homes. During the early
months of 2020, various hearings were held relating to each Child separately.
By June 18, 2020, the court consolidated the cases and a number of
adjudicatory hearings were scheduled. Finally, the contested
adjudicatory/child abuse hearing was held on December 8, 2020. Six days
prior to the scheduled hearing, Mother and Maternal Grandmother requested
that the “in-person” hearing be continued due to Covid-19 issues. The court
responded that nothing in the record established that the hearing was to be
in-person. Therefore, the court ordered that the hearing was to take place on
December 8, as a virtual hearing.
Before any testimony was given on the day of the hearing, Mother and
Maternal Grandmother raised various preliminary objections, among them
challenges to the failure to hold an in-person hearing and the court’s refusal
to appoint legal counsel for W.C. Additionally, Mother requested a continuance
because her criminal case was pending and she did not have an attorney to
represent her in the criminal matter, and thus had no advice as to her Fifth
Amendment rights. The court denied Mother’s continuation requests and the
hearing proceeded. At the hearing, the court heard testimony from Dr. Norrell
Atkinson, and DHS social workers, Shaylyn Kreider and Rodney Hill. A.C.’s
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Father, T.G., also testified.2 Mother and Maternal Grandmother did not testify
or call any witnesses.
In an extensive opinion, the trial court provided the following summary
of the basis for its determination in this case, stating:
After hearing credible, persuasive testimony from Dr.
Atkinson, the child abuse expert witness, and the testimony of the
DHS investigator and case worker, this [c]ourt found that the
condition of these Children constituted “serious physical neglect,”
justifying a finding of abuse under 23 Pa.C.S. § 6303 (b.1)(7).2
The medical evidence was clear and convincing regarding the life-
threatening malnourished condition of A.C. and C.C., and the
condition of W.C.’s morbid obesity. The evidence presented by
the DHS investigator regarding the condition of [] Children’s beds,
food, lack of heating, and overall care given by [] Mother and
Maternal Grandmother placed these Children in a dangerous
situation.
2 23 Pa.C.S.[] [§] 6303 Definitions. (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.
This [c]ourt adjudicated the three Children [d]ependent
based upon the present inability of the parents, [] Mother and two
Fathers, to provide safety. Further, based on the testimony by
the investigator and by A.C.’s Father, T.G., who stated that he had
never physically seen or cared for his son in a year, had only seen
him virtually, had an ongoing intimate relationship with Mother,
and seemed unaware of the seriousness of the condition of his
son. Father, nonetheless, testified he wanted A.C. returned to
Mother and stated the allegations against Mother were all wrong.
Father believes Mother acted innocently throughout all of this
when the facts are overwhelming, not clear and convincing, but
overwhelming of neglect. Specifically, this [c]ourt found A.C.’s
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2 The father of C.C. and W.C. had not been located.
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Father was not credible and not ready, willing, and able to care
for his son.
This [c]ourt was authorized to make a separate finding of
child abuse for the three Children under the Child Protective
Services Law, which provides that a local child services agency
investigating child abuse may institute dependency proceedings in
which it petitions for [a] finding of child abuse. 23 Pa.C.S. §
6370(b)(2)(i).3
3 23 Pa.C.S.[] § 6370. Voluntary or court-
ordered services; findings of child abuse. (b)
Initiation of court proceedings.—(2)(i) If the
county agency deems it appropriate in a dependency
or delinquency proceeding, including an instance in
which the alleged perpetrator has access or poses a
threat to a child, the county agency may petition the
court under 42 Pa.C.S. Ch. 63 (relating to juvenile
matters) for a finding of child abuse.
After finding the three Children dependent, this [c]ourt also
found the evidence presented was sufficient to establish that
Aggravated Circumstances existed as to all three Children
pursuant to 42 Pa.C.S. § 6341(c.1).4 This finding of the existence
of Aggravated Circumstances in this case is used as a basis for
determining where to place [] Children. Although a [c]ourt might
consider reasonable efforts to return Dependent Children to their
family, a finding of Aggravated Circumstances requires the [c]ourt
to carefully evaluate whether to follow that course or to prevent
such a return. This [c]ourt found the evidence sufficient to grant
DHS’s request for a finding of Aggravated Circumstances and
there be no efforts at reunification.
4 § 6341. Adjudication-General rule.—After
hearing the evidence on the petition[,] the court shall
make and file its findings as to whether the child is a
dependent child. (c) Finding of dependency.—If
the court finds from clear and convincing evidence
that the child is dependent, the court shall proceed
immediately or at a postponed hearing, which shall
occur not later than 20 days after adjudication if the
child has been removed from his home, to make a
proper disposition of the case. (c.1) Aggravated
circumstances.—If the county agency or the child’s
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attorney alleges the existence of aggravated
circumstances and the court determines that the child
is dependent, the court shall also determine if
aggravated circumstances exist. If the court finds
from clear and convincing evidence that aggravated
circumstances exist, the court shall determine
whether or not reasonable efforts to prevent or
eliminate the need for removing the child from the
home or to preserve and reunify the family shall be
made or continue to be made and schedule a hearing
as required in section 6351(e)(3) (relating to
disposition of dependent child).
Trial Court Opinion (TCO), 2/24/2021, at 35-37.
Following the issuance of the trial court’s orders, dated December 8,
2020, Mother filed appeals, along with concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3 Mother
raises the following issues:
1. Did the trial court err and/or abuse its discretion by drawing
unfavorable inference(s) from [Mother’s] claim of her 5th
Amendment privileges and/or decisions not to testify for
fear of self-incrimination, and without being appointed Fifth
[A]mendment [c]ounsel.
2. Did the trial court err and/or abuse its discretion by making
a finding of dependency when the evidence presented was
that Mother was already addressing W.C.’s obesity-related
health concerns with specialists prior to DHS [and the]
court[’s] involvement.
3. Did the trial court err and/or abuse its discretion by making
a finding of child abuse under the Child Protective Services
Law, … 23 Pa.C.S. §§ 6301 – 6385 that was not supported
by the record and testimony proffered.
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3 Maternal Grandmother has filed separate appeals and is not a party to
Mother’s appeals presently before this Court. See 124, 125, and 130 EDA
2021.
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4. Did the trial court err and/or abuse its discretion by finding
that aggravated circumstances exist, and further by making
a separate finding that no reasonable efforts to preserve the
family and reunify the [Children] are to be made, which
findings were not supported by the record and testimony
proffered.
5. Did the trial court err and/or abuse its discretion by failing
to grant [Mother’s] oral motion to continue the case despite
such a continuance being in the interests of justice.
6. Did the trial court err and/or abuse tis discretion by failing
to provide [Mother] with an in-person hearing instead of a
virtual hearing thus violating [Mother’s] due process rights
to fundamental fairness.
7. Did the trial court err and/or abuse its discretion by failing
to provide [Mother] with meaningful opportunity to prepare
given the uncertainty as to whether the hearing was
proceeding in[-]person or virtually until the day prior to the
hearing.
8. Did the trial court err and/or abuse its discretion by ordering
[the] parties to proceed virtually without first providing
[the] parties with an opportunity to conference on how [the]
parties’ due process interests could be protected by
adapting courtroom procedure and logistics to provide for a
virtual hearing instead of an in-person hearing.
9. Did the trial court err and/or abuse its discretion by ordering
for a virtual hearing to proceed despite the virtual nature of
the hearing fundamentally and significantly altering the
context of the hearing in potentially outcome-determinate
ways.
10. The trial court erred and abused its discretion by failing to
appoint separate conflict counsel for child W.C. pursuant to
Pa.R.J.C.P. 1128 and In re Adoption of L.B.M., …, 161 A.3d
172 ([Pa.] 2017) and In re T.S., …, 192 A.3d [1080] ([Pa.]
2018).
Mother’s brief at 11-13.
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Before addressing Mother’s issues, we provide an overview of our
standard of review and generally what this Court is guided by in addressing
dependency cases, especially, when the trial court makes a finding of
aggravated circumstances. The Pennsylvania Supreme Court set forth our
standard of review in a dependency case as follows:
“[T]he 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.” In re R.J.T., …,
9 A.3d 1179, 1190 (Pa. 2010). We review for abuse of
discretion[.]
In the Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Section 6302 of the Juvenile Act defines a “dependent child” as:
A child who:
(1) 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. In In re G., T., 845 A.2d 870 (Pa. Super. 2004), this
Court clarified further the definition of “dependent child,” stating:
The question of whether a child is lacking proper parental care or
control so as to be a dependent child encompasses two discrete
questions: whether the child presently is without proper parental
care and control, and if so, whether such care and control are
immediately available.
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Id. at 872 (internal quotations and citations omitted); see also In re J.C., 5
A.3d 284, 289 (Pa. Super. 2010). Additionally, we recognize that “[t]he
burden of proof in a dependency proceeding is on the petitioner to
demonstrate by clear and convincing evidence that a child meets that
statutory definition of dependency.” G., T., 845 A.2d at 872. With regard to
a dependent child, in In re D.A., 801 A.2d 614 (Pa. Super. 2002) (en banc),
this Court explained:
[A] court is empowered by 42 Pa.C.S. § 6341(a) and (c) to make
a finding that a child is dependent if the child meets the statutory
definition by clear and convincing evidence. If the court finds that
the child is dependent, then the court may make an appropriate
disposition of the child to protect the child’s physical, mental and
moral welfare, including allowing the child to remain with the
parents subject to supervision, transferring temporary legal
custody to a relative or public agency, or transferring custody to
the juvenile court of another state. 42 Pa.C.S. § 6351(a).
Id. at 617.
Additionally, the Juvenile Act defines “aggravated circumstances” as
including the following circumstances:
(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.
42 Pa.C.S. § 6302. The Juvenile Act defines “aggravated physical neglect” 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. Upon a
determination that aggravated circumstances exist, the Juvenile Act at 42
Pa.C.S. § 6341(c.1), includes the information quoted in the trial court’s
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opinion relating to the disposition of a dependent child. See TCO, supra.
Additionally, section 6351(e), (f), (f.1), and (g) of the Juvenile Act provides
the trial court with the criteria for its permanency plan for the subject child.
Pursuant to those subsections of the Juvenile Act, the trial court is to
determine the disposition that is best suited to the safety, protection, and
physical, mental, and moral welfare of the child.
In regard to addressing Mother’s issues, we note that although Mother
lists ten issues in her brief, the argument section of her brief only contains
seven sections that do not correspond to the order of the issues listed in her
brief, nor do the argument sections relate to all the listed issues. Mother is
admonished for her failure to comply with Pa.R.A.P. 2119(a). See Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part—in distinctive
type or in type distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are deemed
pertinent.”); Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa.
Super. 2016) (determining that the appeal failed to comply with Rule 2119(a)
where the appellant’s brief did not “present and develop eight arguments in
support of the eight questions raised”). Nevertheless, Mother’s violation of
Rule 2119(a) does not preclude our review; however, we will address only
those claims that she sets forth in her argument section and in the order they
are presented.
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Mother’s first argument section centers on the denial of her request to
have the child abuse hearing continued due to concerns about the Covid-19
pandemic. In the alternative, Mother contends that the hearing should have
been held in-person rather than virtually, which she claims resulted in her due
process rights being violated.
In response to these arguments, the trial court related the following that
led up to the scheduling of the virtual hearing:
Adjudication of these Children was deferred beginning in
January 2020, and the cases were continued on 2/06/2020,
2/25/2020, 4/21/2020, 4/29/2020, and on 6/16/2020, [with] the
order not[ing] that a hearing would be lengthy and in person. On
7/21/2020, a status hearing was held and there was a lengthy
discussion regarding the logistics of having at least 10 parties
present for the next hearing and whether to use a different
courtroom that was larger and could accommodate more people.
The cases were continued to 12/08/2020, for a full day of
testimony, [but] the order made no mention of whether it was to
be in person or virtual and further stated that all discovery to be
passed to all counsel and to the potential expert witness 14 days
prior to the next listing.
On December 3, 2020, this [c]ourt received a letter from
Maureen F. Pie, Esq[.], Mother’s attorney, requesting [a]
continuance of the 12/08/2020 hearing. She noted Angela Ryan,
Esq., Maternal Grandmother’s attorney; Beverly Muldrow, Esq.,
Father, T.G.’s attorney; Carlin Saafir, Esq., attorney for Father,
A.B.; all joined in the request. Kathleen Knese, Esq., Child
Advocate, and Kristina Helmers, Esq., counsel for DHS were not
in agreement for a continuance. In her letter, Ms. Pie, outlined
the “Safer at Home” restrictions, effective 11/20/2020, which
increased restrictions and protective measures for the public in
light of the recent increased risk of infection. She noted that
Philadelphia recently suspended jury trials until January 2021 due
to the recent increase in Coronavirus cases in Philadelphia County.
She further noted that Philadelphia was designated as a “high risk”
county, with increasing COVID-19 infection rate[s] coupled with
the numerous reported cases among our own courthouse
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personnel and their families, which indicates that the potential for
exposure to the virus is significant. Finally, she noted several
members of her household were in high-risk health categories,
and she could not risk exposing them or herself. This [c]ourt
considered Ms. Pie’s written request dated 6 days before the
hearing, denied, in part, the request, and ordered the 12/08/2020
hearing to go forward as a [v]irtual [h]earing.
TCO at 38-39 (citations to the record omitted).
The court further explained its ability to make credibility decisions in the
context of a virtual hearing, stating:
At the start of the hearing on 12/08/2020, Mother’s counsel
stated, “Mother was hampered in this matter by technology
because of the virtual [setting,]” stating “there would be a
question of being able to read facial expressions of the parties,
the lawyers and the Judge.” This [c]ourt noted, “that even if at
one point the hearing was scheduled as in-person, it was changed
on purpose because of the numerous health issues that attend a
large in[-]person hearing of this type. I balanced it against my
ability—and when you all speak of the ability of the [c]ourt, in all
due deference, I’m the only one that can speak to the ability of
the [c]ourt to determine credibility issues. And I have continued
to hear cases since March. I think I missed maybe eight days.
But since then I’ve heard hearings Tuesday through Thursdays
continually since March, and I have had complex abuse cases and
I’ve been able to rule on them and adjudicate them. I do not find
any issues with observing the witnesses. But of course, the
observation of a witness is just a small part of determining the
facts in this matter. The primary issue is what the party says, and
the other issues of looking at body language and other things were
indicia of credibility. I still have the ability to observe when the
person is on the screen. But most importantly, it’s the words that
they use. It’s the language that they use. It’s the evidence that
they give that I am crediting or not crediting. So, I have the ability
to observe. I identified this as a virtual case. I have no doubt
that I can determine, from the evidence, whether or not the facts
are established. I have had no difficulty in observing the
witnesses and taking into consideration those observational
aspects of any testimony.”
Id. at 39-40 (citations to the record omitted).
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The trial court further explained that in holding the virtual hearing, it did
not violate Mother’s due process rights because it was complying with the
Pennsylvania Supreme Court’s directives issued on March 18, 2020, and on
April 1, 2020, and the order entered by the President Judge of the Philadelphia
Court of Common Pleas on May 15, 2020. These orders provided that virtual
hearings were authorized and encouraged to be held in all districts. See id.
at 40-41. Moreover, our review reveals that the trial court’s explanation
addressed Mother’s concerns and she does not specifically identify any
particulars that impacted the outcome of the hearing, such as specific
credibility determinations or problems with the technology. Moreover, the
Rules of Juvenile Court Procedure provide for parties and/or witnesses to
appear at a proceeding using “advanced communication technology.” See
Pa.R.J.C.P. 1129 A (“The child, guardian, or a witness may appear at a
proceeding by utilizing advanced communication technology….”).4 Most
importantly, we recognize that:
Due process requires nothing more than adequate notice, an
opportunity to be heard, and the chance to defend oneself in an
impartial tribunal having jurisdiction over the matter. Due process
is flexible and calls for such procedural protections as the situation
demands.
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4 “Advanced communication technology is any communication equipment that
is used as a link between parties in physically separate locations and includes,
but is not limited to, systems proving for two-way simultaneous audio-visual
communication, closed circuit television, telephone and facsimile equipment,
and electronic mail.” Pa.R.J.C.P. 1120 (Definitions).
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In Interest of A.N.P., 155 A.3d 55, 66 (Pa. Super. 2017) (citations omitted).
Our review reveals that the trial court’s credibility findings are supported by
competent evidence in the record. See In Re R.J.T., 9 A.3d 1179, 1190 (Pa.
2010). Therefore, based on the court’s having continued the hearing at least
five times, see TCO at 38, we conclude that its refusal to continue the hearing
again and to hold it virtually was not an abuse of discretion. Id. Mother’s
first argument section has no merit.
The second argument section of Mother’s brief rests on her contention
that because the court had not appointed legal counsel for W.C., his wishes
were not taken into consideration by the court. With reliance on In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), and In re Adoption of
T.M.L.M., 184 A.3d 585 (Pa. Super. 2018), both termination of parental rights
cases, Mother contends that the record contains no information about what
W.C.’s desires were and how he would be affected by the “no reasonable
efforts to reunify” determination. Specifically, Mother’s brief provides:
In the lead opinion of … L.B.M., Justice Wecht concluded
that a trial court is required to appoint counsel to represent a
child’s legal interests even when the child’s GAL, who is appointed
to represent the child’s best interests, is an attorney. … In a
concurring opinion, four members of the Court took a less rigid
approach to this issue, essentially finding that a child’s guardian
ad litem may also serve as child’s counsel when the dual role does
not create a conflict of interest. L.B.M., 161 A.3d at 183–193.
Subsequent applications of this case found, therefore, that L.B.M.
requires that a conflict-of-interest analysis be conducted to
determine whether a child’s legal interests diverge from the child’s
best interests. In the event of a conflict, separate counsel must
be appointed to represent the child. See … T.M.L.M., …
(remanding where a five-year old child’s preference was
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equivocal, and child’s counsel had not interviewed the child to
determine whether his best interests and legal interests
conflicted).
Mother’s brief at 17-18. Thus, Mother asserts that both her and W.C.’s rights
were violated.
The trial court responded to this contention, stating:
This hearing was a contested adjudicatory hearing, not a
contested termination of parental rights hearing, nonetheless,
there was no evidence presented of any conflict between … Child’s
legal and best interests. This four-year-old Child, W.C., had a
right to counsel and was represented by Ms. Kathleen Knese, Esq.,
the Child Advocate. The evidence on the record showed that W.C.
was morbidly obese because of the care given to him by Mother
and Maternal Grandmother and that put him at risk for various
medical conditions. This [c]ourt ruled that W.C. could express his
wishes to this [c]ourt, however, he was not entitled to dictate
where he should be placed, and [he was] not entitled to separate
counsel at the adjudicatory stage of this case.
TCO at 41-42.
Mother does not contend that no one spoke to Child as to his preference,
but no evidence appears in the record as to his preference, if he actually had
a preference, or if he was able to formulate one. Mother herself could have
testified to this fact, but she chose not to testify at all. Since the record does
not reveal a conflict as to W.C.’s wishes, there was no need for the
appointment of both a GAL and an attorney for W.C. Accordingly, Mother’s
second argument is without merit.
Mother’s third argument concerns her contention that the court
incorrectly drew a negative inference due to Mother’s not testifying based on
her assertion of her Fifth Amendment right to avoid self-incrimination. At the
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time of the adjudication hearing, Mother had not yet retained a criminal
defense attorney. In its opinion, the trial court explained:
The parent’s position in dependence and neglect
proceedings may be subjected to serious deprivation of liberty in
losing custody of the children. Parents may not be deprived of
their fundamental right to raise their children without being
afforded the safeguards of due process of law, including the right
to court[-]appointed counsel. Mother was appointed counsel and
represented since the commencement of this case in January
2020. This [c]ourt discussed Mother’s right to waive her Fifth
Amendment privilege and noted that she could do so at any time.
Mother’s counsel advised her not to speak at the adjudication
hearing and to take advantage of that protection. Mother’s
allegation is gratuitous as there is nothing on the record to support
the notion of this [c]ourt[’s] drawing [any] unfavorable inference
from Mother’s silence. The record does reflect that this [c]ourt
respected Mother’s decision not to speak and[] not[ed] that it
would not impact the case other than the fact that the [c]ourt will
not hear from her.
Id. at 37-38. Again, we conclude that the trial court did not abuse its
discretion, and Mother has not persuaded this Court that this argument has
any merit.
In Mother’s fourth argument, she contends that a court must determine
that the perpetrator acted in a knowing, intentional, or reckless manner, citing
23 Pa.C.S. § 6303(c). That section provides:
(c) Conduct that causes injury or harm to a child or creates a risk
of injury or harm to a child shall not be considered child abuse if
there is no evidence that the person acted intentionally, knowingly
or recklessly when causing the injury or harm to the child or
creating a risk of injury or harm to the child.
Id. Essentially, Mother claims that the record does not contain any evidence
that concerned Mother’s state of mind, i.e., that she acted knowingly,
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intentionally or recklessly. Rather, she contends that at most she acted in a
negligent manner. In Interest of T.G., 208 A.3d 487 (Pa. Super. 2019), this
Court reversed a trial court’s decision wherein the lower court refused to find
the mother a perpetrator of child abuse of her daughter, who at the age of
eight was the size of a three-year-old. The mother argued that she was not
reckless in her care of her daughter. We stated:
[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).
Id. at 492. We further stated that,
whether through malfeasance or nonfeasance, the fact persists
that [the m]other, the sole person responsible for T.G.’s
sustenance, failed to provide T.G. with the necessary nutrition. At
a minimum, [the m]other’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).
Id. at 495.
The situation in the case before us is similar. Mother here is attempting
to convince us that she was unaware that her actions were detrimental and
had a negative impact on the three Children. As did this Court in the T.G.
case, we conclude that evidence in the record here supports a conclusion that
Mother failed to provide Children with proper nutrition, a basic essential of life.
This failure “is tantamount to serious physical neglect insofar as it threatened
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[Children’s] well-being and impaired [their] health and development.” Id. at
496. We, therefore, conclude that the trial court did not err in determining
that Mother acted, at a minimum, in a reckless manner. Mother again fails to
convince us that her argument has merit.
Mother’s last three arguments concern W.C.’s morbid obesity, which
Mother contends was diagnosed prior to DHS’s involvement with the family.
Therefore, she asserts that because she had already enrolled W.C. in a
program at Children’s Hospital of Philadelphia (CHOP) to deal with his health
problems, the grounds for dependency had not been met. Thus, without
grounds to find W.C. dependent, Mother argues that aggravated
circumstances and efforts to unify him with Mother cannot be determined.
These last three argument sections of Mother’s brief are contained
within about two pages of her brief and provide no citations to authority. In
fact, the substance of her arguments are repetitious to statements made in
prior sections of her brief.
Generally, appellate briefs are required to conform to the Rules of
Appellate Procedure. Pa.R.A.P. 2101. Pennsylvania Rule of
Appellate Procedure 2119(a) requires that the argument section
of an appellate brief include “citation of authorities as are deemed
pertinent.” Id. at 2119(a). This Court will not consider an
argument where an appellant fails to cite to any legal authority or
otherwise develop the issue. Commonwealth v. Johnson, …,
985 A.2d 915, 924 (Pa. 2009), cert. denied, Johnson v.
Pennsylvania, 562 U.S. 906, … (2010); see also, e.g., In re
Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating,
“[f]ailure to cite relevant legal authority constitutes waiver of the
claim on appeal[]”) (citation omitted), appeal denied, …, 69 A.3d
603 (Pa. 2013). Therefore, [the a]ppellant’s failure to develop
said issue results in waiver. See id.- 19 -
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In re C.R., 113 A.3d 328, 335-36 (Pa. Super. 2015) (footnote omitted). Thus,
we are compelled to conclude that Mother’s last three argument sections are
waived.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/21
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