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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.C., GRANDMOTHER :
:
:
:
:
: No. 124 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
:
:
APPEAL OF: C.C., GRANDMOTHER :
:
:
:
: No. 125 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: A.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.C., GRANDMOTHER :
:
:
:
:
: No. 130 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
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BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: Filed: August 12, 2021
C.C. (“Maternal Grandmother”) appeals from the 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.1 The trial court also found aggravated circumstances and directed
that no efforts should be made to preserve and unify the family. 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
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* Former Justice specially assigned to the Superior Court.
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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that S.C. (“Mother”) and Maternal Grandmother had been Children’s
caregivers, but that they seemed unconcerned about Children’s conditions.2
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. The court also noted that although
Maternal Grandmother is not a parent to Children, she lived with them and
was the primary caretaker when Mother was at work. Therefore, counsel was
appointed to represent her. 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, 2020, 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
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2 Mother has filed separate appeals and is not a party to Maternal
Grandmother’s appeals presently before this Court. See 126, 127, 128, 129,
131, and 132 EDA 2021.
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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 all 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
Father, T.G., also testified.3 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. This [c]ourt found that Mother and Maternal
Grandmother were responsible for child abuse as to these Children
based upon severe life-threatening medical neglect.
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.
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3 The father of C.C. and W.C. had not been located.
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This [c]ourt adjudicated the three Children [d]ependent
based upon the present inability of the parents, [] Mother and two
Fathers, and [] Maternal Grandmother 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 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.
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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
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 35-38.
Following the issuance of the trial court’s orders, dated December 8,
2020, Maternal Grandmother filed appeals, along with concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Maternal Grandmother raises the following issues:
1. Did the trial court err and/or abuse its discretion by failing
to grant [Maternal Grandmother’s] oral motion to continue
the case despite such a continuance being in the interests
of justice?
2. Did the trial court err and/or abuse its discretion by failing
to provide [Maternal Grandmother] with an in-person
hearing instead of a virtual hearing thus violating [Maternal
Grandmother’s] due process rights in fundamental fairness?
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3. Did the trial court erred [sic] and abused [sic] its discretion
by failing to provide [Maternal Grandmother] 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?
4. Did the trial court err and/or abuse its discretion by ordering
parties to proceed virtually without first providing parties
with an opportunity to conference on how 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?
5. 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-determinative
ways?
6. Did the trial court err and/or abuse its discretion by drawing
an unfavorable inference(s) from [Maternal Grandmother’s]
claim of her 5th Amendment privileges and/or decisions not
to testify for fear of self-incrimination, without being
appointed fifth amendment [c]ounsel?
7. Did the trial court err and/or abuse its discretion by failing
to appoint separate conflict counsel for child, W.C., pursuant
to Pa.R.J.C.P. 1128, In re Adoption of L.B.M., …, 161 A.3d
172 ([Pa.] 2017), and In re T.S., …, 192 A.3d [1080] ([Pa.]
2018)?
8. Did the trial court err by making a finding of child abuse
under the Child Protective Services Law, Pa.C.S. §§ 6301—
6385 when such a finding was not supported by the record
and testimony proffered?
Maternal Grandmother’s brief at 7-9.
Before addressing Maternal Grandmother’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
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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.
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
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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
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
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determine the disposition that is best suited to the safety, protection, and
physical, mental, and moral welfare of the child.
Before addressing Maternal Grandmother’s issues, we note that
although Maternal Grandmother lists eight issues in her brief, the argument
section of her brief only contains four 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. Maternal Grandmother 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, Maternal Grandmother’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.
Maternal Grandmother’s first argument section centers on her
allegations that her due process rights were violated because the trial court
denied her requests for a continuance because of the Covid-19 pandemic and
ordered that the hearing be held virtually. She relies on earlier orders issued
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in June and July of 2020 that indicated that the proceedings would be held in-
person.
In response to these arguments, the trial court related the following that
led up to the scheduling of the virtual hearing:
Adjudication hearing for these Children was deferred
beginning in January 2020, and continuances were granted on
2/06/2020, 2/25/2020, 4/21/2020, 4/29/2020. The 6/16/2020
continuance order noted that a hearing would be lengthy and in
person. Then, 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, Esquire, 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 [with] a continuance. In her letter, Mother’s counsel
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 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 her written request, joined by Maternal
Grandmother’s counsel, dated 6 days before the hearing, and
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denied, in part, the request. This [c]ourt then ordered the
12/08/2020 hearing to go forward as a [v]irtual [h]earing.
TCO at 39-40 (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 [j]udge.” 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[s] 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 40-41 (citations to the record omitted).
The trial court further explained that in holding the virtual hearing, it did
not violate Maternal Grandmother’s due process rights because it was
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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 41. 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 Specifically, the court stated that
Maternal Grandmother was given adequate notice, given adequate
discovery of evidence and by and through her attorney was able
to present evidence, cross-examine witnesses and fully participate
in the virtual hearing. The record dating back to the beginning of
this case in January 2020, supports the fact that [th]is [c]ourt did
not violate Maternal Grandmother’s due process rights to
fundamental fairness.
TCO at 41 (citations to the record omitted). 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.
In Interest of A.N.P., 155 A.3d 55, 66 (Pa. Super. 2017) (citations omitted).
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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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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 39, we conclude that its refusal to continue the
hearing again and to hold it virtually was not an abuse of discretion. Id.Maternal Grandmother’s first argument has no merit.
Maternal Grandmother’s second argument section rests on her
contention that because the court had not appointed legal counsel for W.C.,
his wishes were not taken into consideration. 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,
Maternal Grandmother 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, Maternal Grandmother’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).
Maternal Grandmother’s brief at 14-15. Thus, Maternal Grandmother 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 therefore, [he was] not entitled
to separate counsel at the adjudicatory stage of this case.
TCO at 42-43.
Maternal Grandmother does not contend that no one spoke to W.C. 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. Maternal
Grandmother 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, Maternal Grandmother’s second argument is without merit.
Maternal Grandmother’s third argument section concerns her contention
that the court incorrectly drew a negative inference due to her not testifying
based on her assertion of her Fifth Amendment right to avoid self-
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incrimination. She contends that although a criminal defense attorney had
been appointed to represent her in the criminal proceedings, she had not yet
had an opportunity to confer with that attorney. The trial court states in
response to this argument that:
The parent’s position in dependence and neglect
proceedings may be subject to a 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. Maternal Grandmother is not the
parent of these Children; however, she was living with them and
was a primary caregiver when Mother was working. She was
appointed counsel and represented by Angela Ryan, Esq.[,] since
1/30/2020. This court 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. Maternal
Grandmother’s allegation is gratuitous as there is nothing on the
record to support the allegation that Maternal Grandmother’s
failure to testify resulted in this [c]ourt[’s] drawing [an]
unfavorable inference from her silence.
TCO at 38 (citation to record omitted). Based upon our review of the record
and the explanation provided by the trial court, we conclude that the trial court
did not abuse its discretion, and Maternal Grandmother has not persuaded
this Court that her argument has any merit.
In Maternal Grandmother’s fourth argument, she contends that to find
that a child has been abused, 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
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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, Maternal Grandmother claims that the record does not contain
any evidence that concerned her state of mind, i.e., that she acted knowingly,
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. Maternal Grandmother
here is attempting to convince us that she was unaware that her actions were
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detrimental and had a negative impact on the three Children. As did this Court
in the T.G. case, we conclude that the evidence in the record here supports a
conclusion that Maternal Grandmother failed to provide Children with proper
nutrition, a basic essential of life. This failure “is tantamount to serious
physical neglect insofar as it threatened [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 Maternal Grandmother acted, at
a minimum, in a reckless manner. Maternal Grandmother again fails to
convince us that her argument has merit.
For the reasons stated above, we conclude that the trial court’s findings
are supported by the evidence and it did not abuse its discretion in formulating
its conclusions. We therefore affirm the trial court’s orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/21
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