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[U] In re J.B.

Superior Court of Pennsylvania

November 1, 2013

IN THE INTEREST OF: J.B., A MINOR APPEAL OF: J.E., MOTHER IN THE INTEREST OF: J.B., A MINOR APPEAL OF: C.B., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order entered March 26, 2013, in the Court of Common Pleas of Philadelphia County, Family Court, at No.: CP-51-AP-0002104-2012

BEFORE: DONOHUE, WECHT, and STRASSBURGER[*], JJ.

MEMORANDUM

WECHT, J.

Appellants, J.E. ("Mother") and C.B. ("Father"), appeal from the orders entered on March 26, 2013 in an ongoing dependency case, finding that aggravated circumstances existed as to both Mother and Father. After careful review, we affirm in part and reverse in part.

The record reveals the following relevant facts and procedural history. The family first came to the attention of the Philadelphia Department of Human Service ("DHS") on November 14, 2012, when DHS received a Child Protective Services ("CPS") report that contained allegations of medical neglect of J.B. ("Child"), who was seven years old at the time. Trial Court Opinion ("T.C.O."), 6/18/2013, at 1. Child was diagnosed with Congenital Nephrotic Syndrome when she was six months old, and had undergone dialysis until she received a kidney transplant in August 2007 when she was three years old. After receiving the kidney transplant at Children's Hospital of Philadelphia ("CHOP"), Child was placed on numerous anti-rejection medications so that her body would not reject the transplant, and the family was informed about the medications and how they were to be administered. The family was told that the medications were to be given to Child approximately every twelve hours. Id. at 1.

For a few years after receiving the transplant, Child's health was stable. However, in November 2010, Child's kidney function began to fail, and Child resumed dialysis. On November 9, 2012, Child was hospitalized due to complications arising from high blood pressure. Id. at 1-2. DHS learned that Child is suffering from end-stage renal disease, and that, at the time of the hearing, she was required to have dialysis three times per week. CHOP physicians determined that Child needs a second kidney transplant, and that the rejection of her previously transplanted kidney is due to inconsistent administration of her medication. During DHS's investigation, Mother admitted that she sometimes did not give Child her medication every twelve hours, as prescribed. Id. at 2. Mother also admitted to Child's doctor and to the CHOP social worker that, on numerous occasions, she did not give Child her medication on time. In addition, Mother admitted to being overwhelmed with taking care of Child and Mother's other child. Id. The record shows that on November 19, 2012, Mother attempted suicide. Notes of Testimony ("N.T."), 3/26/2013, at 84. At the time of the hearing, Child's kidney function was less than ten percent. Child's current condition is life-threatening, and she needs another kidney transplant. T.C.O. at 2.

Evidence reveals that Mother had primary physical custody of Child and was Child's primary caregiver for most of Child's life. However, Father had partial physical custody of Child, and she stayed with Father at his home in Washington, D.C. every other month and during some holidays. T.C.O. at 2. Father was aware of Child's kidney condition and her medication needs, and was required to administer Child's medication when she visited him. The record shows that Father participated in a meeting at CHOP in September 2011, but had no further contact with CHOP after that meeting. Id. Thus, the trial court concluded that Father did not closely monitor Child's condition. Id. at 6.

On November 19, 2012, while Child was still hospitalized, DHS obtained an Order of Protective Custody ("OPC"). On November 27, 2012, DHS filed a dependency petition, alleging both that aggravated circumstances pursuant to 42 Pa.C.S.A. § 6302 existed, and that Child had been a victim of aggravated physical neglect while in the care of Mother and Father. A dependency hearing was commenced on January 29, 2013, and continued on March 25, 2013, and March 26, 2013. During hearings, all parties agreed to an adjudication of dependency by the trial court based upon the present inability of Mother and Father to care for Child. On March 26, 2013, the trial court adjudicated Child dependent. The remaining issues at the hearing were whether aggravated circumstances and medical neglect existed. At the conclusion of the hearing on March 26, 2013, the trial court entered findings of child abuse and medical neglect against Mother and Father. The trial court also found clear and convincing evidence that aggravated circumstances were present as to both Mother and Father, and determined that DHS need not make reasonable efforts to preserve or reunify the family. Id. at 3. After a review of the evidence, the trial court found the testimony of the DHS social workers, Child's doctor at CHOP, the social worker at CHOP, the DHS nurse consultant, the agency social worker, and the paternal grandmother to be credible. Id. at 3 n.1.

On April 1, 2013, Mother timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In addition, on April 18, 2013, Father timely filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).[1]

Mother raises four issues for our review:

1. Should [Mother's] Appeal be quashed where [Mother] has filed a timely appeal, has filed a timely 1925(b) statement, has substantially complied with the Rules of Appellate Procedure, and no Order pursuant to Rule 1925(b) was issued in the matter?
2. Did the Trial Court err in making a finding of child abuse and medical neglect regarding [Mother]?
3. Did the Trial Court err in making a finding of aggravated circumstances regarding [Mother]?
4. Did the Trial Court err in finding no reasonable efforts concerning [Mother]?

Mother's Brief at vii.

On appeal, Father raises three issues:

A. Whether the trial court committed reversible error in making a finding of child abuse and medical neglect as to [Father]?
B. Whether the trial court committed reversible error in making a finding of aggravated circumstances regarding [Father]?
C. Whether the trial court committed error in making a finding of no reasonable efforts concerning Father?

Father's Brief at 4.

Our scope and standard of review in dependency cases are as follows:

The standard of review which this Court employs in cases of dependency is broad. However, the scope of review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence.

In re D.A., 801 A.2d 614, 617-18 (Pa.Super. 2002) (quoting In re B.B., 745 A.2d 620, 622 (Pa.Super. 1999) (citations omitted)).

Further, we have explained:

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

In re D.A., 801 A.2d at 618 (quoting In re C.J., 729 A.2d 89, 92 (Pa.Super. 1999)).

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.A. § 6302. Mother and Father do not challenge the trial court's dependency determination.

Next, 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.A. § 6302.

The Juvenile Act defines "serious bodily injury" as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." Id. The Juvenile Act, in turn, 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 states the following:

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).

42 Pa.C.S.A. § 6341(c.1). While the Juvenile Act focuses upon reunification as a primary goal, when aggravated circumstances are found, reunification need not be pursued. In re M.S., 980 A.2d 612, 615 (Pa.Super. 2009).

Mother's and Father's issues are interrelated. Both challenge the trial court's finding of aggravated circumstances, as well as its finding that further efforts at preserving the family and reunification were not required.[2] [3]

In their issues on appeal, Mother and Father both contend that the trial court erred in finding aggravated circumstances and medical neglect against them. Mother argues that the medical testimony was insufficient to link her failure to give the medication as directed with Child's kidney failure. Mother maintains that the evidence does not support a finding of medical neglect or aggravated physical neglect so as to justify a finding of aggravated circumstances. Mother asserts that she was highly involved in Child's care, which is inconsistent with a finding of medical neglect. Mother's Brief at 9-16.

Father argues that there was little evidence regarding his involvement with Child and her care. Father argues that it is improper to impute Mother's omission in care to Father. Father maintains that he properly provided care to Child when she was in his custody. Father's Brief at 14-19.

The trial court ruled that aggravated circumstances may be found when "[t]he child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent." 42 Pa.C.S.A. § 6302. (emphasis added). The trial court found "aggravated physical neglect" in that there was an "omission in the care of a child which result[ed] in a life-threatening condition or seriously impair[ed] the child's function." T.C.O. at 5.

In reaching its decision, the trial court reasoned that both Mother and Father have the responsibility to provide care, control, and subsistence for Child, and a duty to love, to protect, and to support Child. T.C.O. at 5 (citing Matter of Adoption Embick, 506 A.2d 455, 470 (Pa.Super. 1986)). The trial court held that Mother's and Father's acts and omissions should weigh equally, and that their parental duty extends beyond merely avoiding active abuse of their Child. Their duty also extends to protect Child from the harm that others may inflict. Id. (citing In re R.W.J., 826 A.2d 10, 14 (Pa.Super. 2003)).

The trial court heard a great deal of testimony concerning Mother's failure to follow medical instructions. This failure endangered Child's life and development and impaired Child's physical functioning. In October 2006, Mother was instructed on how to add salt properly to Child's feedings in order to address Child's sodium deficiency. N.T., 1/29/2013, at 11. However, due to Mother's mistakes in administering the salt, Child suffered extremely elevated blood sodium levels, which put her in a coma and caused significant damage to her brain. Id. at 11-13.

In August 2007, Child received a kidney transplant. It is undisputed that the medical staff at CHOP thoroughly and repeatedly instructed Mother regarding the regimen and the importance of administrating Child's medications on a timely basis. N.T., 1/29/2013, at 14-16; N.T., 3/25/2013, at 11. The kidney transplant team stressed to Mother the need to give the immunosuppressant medications every twelve hours, and no more than thirteen hours apart, because, if not given in a timely fashion, Child's kidney would be left unprotected and subject to rejection. N.T., 1/29/2013, at 16; N.T. 3/25/2013, at 20-21. Mother was also required to administer high blood pressure medications to Child in order to treat high blood pressure associated with the side effects of the immunosuppressant medications and Child's kidney condition. N.T., 1/29/2013, at 17-18. Mother admitted to both the CHOP medical team and DHS's social worker and nurse that she was aware of the importance of administering Child's medications in a timely manner. N.T., 3/25/2013, at 41-43. Mother also admitted that the hospital gave her training regarding the administration of the medications. N.T., 3/26/2013, at 78, 87.

In 2009, Child's high blood pressure was noted during a visit to the Clinic. N.T., 1/29/2012, at 19. Mother admitted that the necessary medicine had not been given in the morning because she was rushing out of the house. Id. Moreover, beginning in 2010, Child's lab tests indicated that the anti-rejection medication was not being given as prescribed. Id. at 25-26. At that time, Mother acknowledged to CHOP's medical staff that she either forgot to give the medication or gave it late. N.T., 3/25/2013, at 30-31. Competent testimony at trial demonstrated that the problems existed with the medication levels through 2012, and that Child's kidney function diminished to the point that Child had to return to hemodialysis in order to preserve her life. N.T., 1/29/2013, at 30-31. Child's physician testified that Mother's failure to administer medication properly was a factor in Child's kidney failure. Id. at 33-34.

In September 2011, Child's kidney failure was so severe that she was evaluated for a second kidney transplant. N.T., 3/25/2013, at 23. At that time, the transplant team added Child to the transplant list, but Child was on "inactive" status and could not receive a kidney because the team felt that the "situation at home was not safe to activate her." N.T., 3/26/2013, at 49-50; see N.T., 1/29/2013, at 31-32; N.T., 3/25/2013, at 26. Because of Mother's admissions concerning the chaos in her life and how overwhelmed she was, the team recommended that Mother and Child attend individual and family counseling. N.T., 3/25/2013, at 26-27. Mother failed to follow through with the therapy as recommended. Id. at 27-28.

In November 2012, Child was hospitalized because her blood pressure was so high when she came in for dialysis that it was feared that she might suffer a stroke. N.T, 3/25/2013, at 32; N.T., 3/26/2013, at 45-46. Mother conceded that she had not given Child her blood pressure medication. N.T., 3/26/2013, at 50. A CPS report was filed with DHS, and Mother later was deemed "indicated" for abuse that resulted in Child's condition. Mother admitted that she failed to give Child her blood pressure medications on at least two days that week. Mother also admitted that she did not always give Child her immunosuppressants every twelve hours, and sometimes gave doses thirteen or fourteen hours apart or "when she remembered." Id. at 13, 50.

Mother, who had primary physical custody of Child, had a duty to provide Child with the necessary medication as prescribed and regulated. As a young child, Child was totally dependent on Mother for her care. In turn, Mother knew the importance of the medications with regard to the survival of Child's kidney and ultimately Child's life. The evidence established, and Mother admitted, that she failed to exercise her duty to care for Child.

Mother's claim that her actions should be excused because she did not intend to harm Child lacks merit. Mother's Brief at 11-13. Parents are equally responsible for the harm caused to their children whether by their neglect or by their intentional acts. 23 Pa.C.S.A. §§ 6303(b)(1)(4), 6381(d). Child's condition is very serious and requires constant attention. Indeed, Child's condition is life-threatening and impairs Child's functioning. Child needs a kidney transplant as soon as possible. Mother's failure to administer Child's medicine properly and to cooperate with counseling prevents Child from being activated on the kidney transplant list in order to procure another kidney. Thus, Mother's neglect continues to endanger Child's life and impair Child's functioning.

Similarly, as to Father, the physical and emotional needs of Child cannot be met with a mere passive interest in Child's development. Parental obligation is a positive duty, which requires affirmative performance. In re Matsock, 611 A.2d 737, 745 (Pa.Super. 1992). Father's parental duty extends beyond a mere absence of active abuse of Child. Father must also protect Child from the harm that others, including Mother, may inflict. In re R.W.J., 826 A.2d at 14.

The record shows that, although Mother had primary custody of Child, Father had partial physical custody and involvement in Child's life, as Child visited Father at his home in Washington, D.C., at least six times a year, sometimes for a week at a time. The trial court found that Father was aware of Child's serious kidney condition and the need to administer her medication properly. T.C.O. at 5. Competent evidence presented at trial revealed that Father participated in a meeting at CHOP in September 2011, but that he had no further contact with CHOP after that meeting and did not inquire as to the condition of Child. Id.; N.T., 3/25/2013, at 49; N.T., 3/26/2013, at 35-36, 50. Our Supreme Court has held that "a parent has a duty to provide needed medical care for the child, especially in light of exigent or potentially life-endangering circumstances." In re F.C., III, 2 A.3d 1201, 1210 (Pa. 2010). Father had an affirmative duty to ensure that Child's medical needs were being met. Father cannot abdicate his parental responsibilities and be absolved of all accountability by the mere fact that he was not always present in Child's life. The court did not err in finding that Father committed neglect.

Adequate evidence of record supports the trial court's decision regarding medical and physical neglect. There is also adequate evidence to support the trial court's finding of aggravated circumstances as it relates to Mother. Under our standard of review, we are bound to affirm.

Father asserts that the trial court erred in making a finding of aggravated circumstances against him. The attorney representing DHS conceded that he was unsure the agency had met its burden of clear and convincing evidence for aggravated circumstances. N.T., 3/26/2013, at 99-100. While the evidence adequately supported the conclusion that Father committed neglect, the evidence did not support a finding of aggravated circumstances as it relates to Father.

While Father failed to take affirmative action to protect Child, his conduct did not rise to the level of "aggravated physical neglect." Mother and various agencies have withheld information from Father and failed to contact Father regarding Child's condition. Specifically, the DHS social worker testified that she was able to obtain Father's contact information during a conversation with Child's paternal grandmother following Child's hospitalization. N.T., 3/26/2013, at 16. The social worker then spoke to Father, who knew little of Child's condition or medications, and indicated that when Mother was "overwhelmed" Child would go to Washington, D.C. to visit Father and paternal grandparents. Id. at 17, 36-37. The social worker testified that neither DHS nor the hospital staff had contacted Father with any concerns involving Mother's care of Child. Id. at 38-39. Similarly, the DHS nurse consultant testified that the only information she had regarding Father came from Mother and that she was informed by Mother that "[Father] was never involved." Id. at 56. Moreover, she indicated that the CHOP medical team and staff never mentioned Father. Id.

The testimony confirmed that no one from DHS or hospital staff contacted Father regarding the agency's concerns about Mother's ability to care for Child. Id. at 38-39, 56-57. Mother denied telling Father about any problems or concerns with Child's medication because she "didn't want to stress him out." N.T., 3/26/2013, at 90, 92. Based upon the testimony elicited at trial, it is unreasonable to conclude that Father knew enough about the medication issues to constitute aggravated physical neglect. Therefore, we conclude the trial court erred in finding aggravated circumstances as to Father. We reverse that finding.

Finally, both Mother and Father contend that the trial court erred in making a finding that no reasonable efforts should be extended by DHS to preserve or reunify the family with Child. Neither Mother nor Father advances any additional argument on this issue. Both incorporate their previous arguments. Mother Brief at 16; Father's Brief at 20.

As we have found the trial court erred in finding aggravated circumstances as to Father, we also find the trial court erred in determining that no reasonable efforts should be extended by DHS in reunifying Child and Father. Upon remand, the trial court must direct DHS to provide reasonable efforts to reunify Child and Father.

However, after a review of the record and the testimony presented, we find that the trial court accurately concluded that Mother's continuing neglect of Child's medical needs to the point of Child being near death precludes the necessity of DHS providing reasonable efforts to reunify Mother with Child, and that no basis for such relief exists. This Court has held that "[w]hen the court finds that aggravated circumstances exist, it is well within its discretion to order the cessation of reunification services." In re A.H., 763 A.2d 873, 878 (Pa.Super. 2000). The focus of the inquiry into whether to terminate efforts to reunify is the best interest of the child. The child's health and safety "supersede all other considerations." In re R.P., 957 A.2d 1205, 1220 (Pa.Super. 2008). If the health and safety of a child cannot be assured with the family, it is proper not to pursue reunification. Id. Instantly, there was sufficient evidence from which to conclude Child's health and safety could not be assured with Mother and to support the trial court's decision. Accordingly, the trial court's orders entered on March 26, 2013, finding aggravated circumstances as to Mother, and the lack of a need for DHS to provide new or additional efforts to preserve or reunify the Mother and Child, are affirmed.

Order affirmed as to Mother. Order affirmed as to Father's neglect, but reversed as to a finding of aggravated circumstances as to Father. Remanded for further proceedings in accordance with this memorandum. Jurisdiction relinquished.

Judgment Entered.


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