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In re J.A.

Superior Court of Pennsylvania

January 6, 2015


Argued: October 21, 2014

Page 800

Appeal from the Order entered March 27, 2014, of the Court of Common Pleas, Allegheny County, Juvenile Division, No. 13-1136. Before COZZA, J.

Benjamin N. Zuckerman, Pittsburgh, for appellant.

Susan J.S. Abramowich, Pittsburgh, for appellee.

Darnel B. Rosario, Pittsburgh, for CYS, participating party.



Page 801


D.A. (" Mother" ) appeals from two orders entered by the Allegheny County Court of Common Pleas (the " juvenile court" ). The first appeal, docketed at 682 WDA 2014 (the " first appeal" ), is from the March 27, 2014 order granting the motion of KidsVoice, guardian ad litem for J.A., appointing KidsVoice as J.A.'s medical

Page 802

guardian.[1] As neither the Juvenile Act nor the Rules of Juvenile Court Procedure permit this appointment, we vacate the juvenile court's order.[2]

The second appeal, docketed at 1158 WDA 2014 (the " second appeal" ), pertains to the order entered on June 18, 2014. The basis of Mother's appeal from this order is the juvenile court's refusal to entertain testimony in support of Mother regaining medical decision-making rights for J.A. The juvenile court refused to do so pursuant to Rule of Appellate Procedure 1701, as the issue of the propriety of the appointment of KidsVoice as J.A.'s medical guardian was pending on appeal. Because the juvenile court may always enter orders in the child's best interest, we conclude that it erred by prohibiting questioning on that basis.

Also before this Court is a motion filed by KidsVoice seeking the dismissal of both of the aforementioned appeals on mootness grounds based upon the juvenile court's November 7, 2014 order appointing Mother as J.A.'s medical guardian. We conclude that although the November 7, 2014 order renders the appeals before us moot, the issues raised in the appeals are capable of repetition and likely to evade review. We therefore deny KidsVoice's motion to dismiss the appeals.[3]

The record reflects the following facts and procedural history. The Allegheny County Office of Children, Youth and Families (" CYF" ) became involved with D.A. and her family on April 24, 2013, when it learned that J.A. (born in September of 2007) and her five minor siblings were residing with their 19-year-old sister.[4] Mother reportedly had been incarcerated since April 4, 2013 on charges of criminal homicide and aggravated assault for the death of J.A.'s biological father, D.J. On this basis, CYF filed a dependency petition on June 4, 2013, alleging that J.A. and her minor siblings were " without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental, or emotional health, or morals[.]" Dependency Petition, 6/4/13, at 3; see 42 Pa.C.S.A. § 6302(1) (defining " Dependent Child" ). The juvenile court entered an order the same day appointing KidsVoice as J.A.'s guardian ad litem (" GAL" ).

On August 6, 2013, the juvenile court granted CYF's request for a continuance, as CYF had additional concerns regarding alleged " unresolved medical issues with the children that may cause an amendment

Page 803

to the petition." Miscellaneous Order, 8/6/13. CYF filed an amended dependency petition on August 14, 2013, indicating that Mother was released from jail, was on house arrest and required financial assistance from CYF to pay utilities and rent, but was " becoming disinterested" with complying with services provided by CYF. Dependency Petition, 8/14/13, at 3. At the time of the filing of the amended petition, CYF was unable to obtain medical records for several of the children, including J.A., " due to the lack of information." Id.

The juvenile court held the adjudicatory hearing on August 28, 2013, at which Mother stipulated that the children were dependent pursuant to 42 Pa.C.S.A. § 6302(1). As stipulated by Mother, the juvenile court found that Mother was in need of assistance from CYF to provide proper care for and control of the children, particularly the medical needs of J.A., who had been diagnosed with Turner syndrome as an infant.[5] The juvenile court further entered a dispositional order, leaving the children in Mother's physical custody and ordering, in relevant part, that Mother " attend to the children's medical needs[] and comply with the recommendations of Children's Hospital." Order of Adjudication and Disposition -- Child Dependent, 8/28/13, at 2. In the August 28, 2013 order, the juvenile court neglected to indicate who had legal custody of J.A.[6]

Following the November 21, 2013 permanency review hearing, the juvenile court ordered, inter alia, that J.A. attend appointments with an endocrinologist and cardiologist. The juvenile court ordered that J.A. remain in Mother's physical custody, and remedied its prior omission by identifying CYF as the child's legal custodian.

Mother and the children failed to appear at the February 20, 2014 permanency review hearing. The juvenile court subsequently learned that they had been in a motor vehicle accident on their way to the hearing and that J.A. had been ejected from the car in which she was either an unrestrained or an improperly restrained passenger. At the rescheduled hearing on March 20, 2014, testimony revealed that J.A. remained hospitalized at Children's Hospital of Pittsburgh from the accident. According to the testimony of Dr. Jennifer Wolford, an attending physician in the Division of Child Advocacy of Children's Hospital, J.A. broke her femur and multiple facial bones, all of which Mother consented to having repaired. She had bruised lungs and several contusions, which were healing. She also had multiple central lines placed and a tracheostomy, to which Mother consented.

J.A. sustained her most significant and severe injury to her brain. As she was only six years old at the time of the accident, she still had a soft spot in her head,

Page 804

which she struck, resulting in the excess fluid not draining from her brain as it should. Doctors placed an external drain in J.A.'s head in an attempt to drain the fluid, but J.A. began having fevers. Because of the risk of infection, they clamped the external drain after 26 days, which, according to Dr. Wolford, was longer than an external drain usually stayed in place. Dr. Wolford testified that the standard of care called for the child to receive an internal drain, called a shunt, but that Mother would not give her consent. According to Dr. Wolford, this was a very common and relatively simple procedure. Dr. Wolford filed a Childline report alleging medical neglect by Mother, as her refusal to provide consent for this procedure was impeding J.A.'s recovery from her brain injury.

Dr. Wolford ordered an additional CT scan of J.A.'s brain the morning of the March 20, 2014 hearing, which " show[ed] extra fluid buildup actually outside of her brain." Id. According to Dr. Wolford, this fluid buildup would eventually lead to too much pressure inside of J.A.'s brain. The procedure was urgent, but it had not yet become an emergent situation requiring immediate surgery. Dr. Wolford testified, however, that the situation could become life threatening at any time. Although she was unaware whether anyone had discussed with Mother the results of that morning's scan, Dr. Wolford testified that several doctors, herself included, had previously spoken with Mother about the need for a shunt and that Mother had not consented to the procedure, stating that she wanted to wait and see how J.A. did on her own. During her testimony, Mother indicated her belief that the swelling in the child's brain had reduced and that doctors clamped the external drain from the child's brain because it was no longer necessary.[7]

J.A. was also experiencing an inflamed gallbladder, which was reportedly causing the child a great deal of pain. Doctors wished to drain her gallbladder, but again, Mother would not consent to this procedure. Mother explained during her testimony that this was because she did not " want that much trauma on [J.A.]'s body right now." Id. at 49. Mother testified that she believed the cause of the inflammation to be that the hospital attempted to initiate feedings too quickly and thought that the provision of antibiotics would help. Mother did not think J.A. was uncomfortable and testified that she believed that the doctors were taking the child off pain medications.

Mother testified that she was at the hospital almost the entire time J.A. was there. Mother stated that she was aware that a CT scan took place the morning of the hearing but that no one had spoken to her about the results. She testified that if, upon her return to the hospital, doctors informed her that J.A. still needed an internal shunt in her brain and to have her gallbladder drained, she was willing to consent to both procedures.

At the inception of the March 20, 2014 hearing, the GAL indicated that she planned to make an oral motion for KidsVoice to be appointed as J.A.'s medical guardian because of Mother's reported refusal to consent to the aforementioned procedures. The GAL withdrew this request at the conclusion of the hearing based upon Mother's stated willingness to provide the necessary consent. The juvenile court entered an order recounting Mother's agreement to consent to the procedures

Page 805

" once the situation is fully explained to her," and requiring that all of the children " receive all necessary medical, dental and eye care." Permanency Review Order (Non-Placement), 3/21/14, at 2.

On March 26, 2014, the GAL filed an emergency motion requesting the appointment of KidsVoice as J.A.'s medical guardian. In the motion, the GAL averred as follows:

a. [J.A.] has been in need of the internal shunt for her brain for over a week at this point. She has had two temporary drains placed, the most recent one over this past weekend because [J.A.] was literally " squirting brain fluid from her brain." The temporary drains cannot remain in place for extended periods of time because there is an extremely high risk of infection.
b. Mother indicated at the continued permanency review hearing on March 20, 2014 before Hearing Officer Hobson that she would be willing to sign consents if the procedures were still indicated after an updated ultrasound of the gallbladder and CT scan of the brain.
c. Updated diagnostics tests were performed and confirmed that the procedures were still necessary.
d. Mother spoke to the resident physician on Monday but insisted upon speaking to the attending neurosurgeon who was out of town until the following day.
e. Mother spoke to the attending neurosurgeon on Tuesday who again affirmed the need for the internal shunt.
f. Despite speaking to 4-6 different neurosurgeons on staff at Children's Hospital -- Pittsburgh, Mother now is requesting a second opinion from a neurosurgeon who is not on staff at Children's.
g. [J.A.]'s medical condition, in the [pediatric intensive care unit], is too unstable to be transferred to another facility.
h. The doctor's [sic] believe that this procedure must be completed by Thursday, March 27, 2014[,] and have expressed this to [M]other.
i. [J.A.]'s condition is extremely life-threatening in that if she does not get the internal shunt, the brain fluid will collect in her brain and eventually cause her brain to herniate. This will cause all life functions to cease. A " best case" scenario would be a mere partial herniation resulting in probable severe and permanent brain impairment.
j. Mother has hesitated to sign releases based upon her belief that God will heal [J.A.] and not wanting to put [J.A.] through additional medical ...

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