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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.M., MOTHER :
:
:
:
:
: No. 1339 EDA 2018
Appeal from the Order Entered March 26, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0002333-2017
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 09, 2018
L.M. (“Mother”) appeals from the order entered March 26, 2018, finding
that aggravated circumstances existed against Mother as to her minor
daughter, J.M. (“Child”), born in February 2004, and that she had committed
child abuse.1 We affirm.
Child was admitted to Children’s Hospital of Philadelphia (“CHOP”) for
over a month in February 2017 through March 2017 with symptoms of
vomiting, abdominal pain, weakness, dehydration, and weight loss. See N.T.,
Hearing, 9/6/17, at 41-43. Prior to this hospitalization, Child had been healthy.
See N.T., Hearing, 3/26/18, at 105. Child was diagnosed with rumination
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1The court did not make a finding of child abuse or aggravated circumstances
as to Child’s biological father, R.T. (“Father”), a non-custodial parent.
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syndrome, a form of conversion disorder.2 See N.T., Hearing, 9/6/17, at 43.
CHOP recommended intensive behavioral health treatment and transferred
Child to the Medical-Behavioral Unit (“MBU”). Mother, a nurse, resisted this
transfer and demanded unnecessary medical testing and medication. See id.,
at 49-54, 60. CHOP eventually moved Child back to general pediatrics due to
Mother’s lack of cooperation with the MBU recommended treatment. See id.,
at 54-56. When Mother eventually agreed to comply with recommended
treatment for Child, CHOP discharged Child to Mother’s care. See id., at 58-
60.
Following the discharge, Mother brought Child to a single outpatient
psychological appointment. See id., at 61-62. Child’s condition continued to
deteriorate to the point where she could not walk without assistance. See id.,
at 69. In May 2017, Child was admitted to Nemours Alfred Dupont Hospital
(“Nemours”), where, after undergoing a spinal tap and blood tests, she was
diagnosed with conversion disorder, manifesting in an abnormal gait and
pseudo-seizures. See id., at 63-64, 71-72, 80. Mother did not accept this
diagnosis and continued to insist that Child be given medication. See id., at
71, 75-76, 80. During Child’s time at Nemours, Mother stated that the hospital
was killing Child by not giving her medication. See id., at 76-78.
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2 Rumination syndrome is a psychiatric condition where patients force
themselves to vomit; conversion disorder is, likewise, a psychiatric condition
which may include vomiting, pseudo-seizures, or the inability to walk. See id.
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Nemours transferred Child to Pittsburgh Children’s Institute (“PCI”) for
treatment for her conversion disorder, where she was additionally diagnosed
with hypermobility, or Ehlers-Danos Syndrome Type 3.3 See id., at 78-80.
This syndrome is non-pathologic and does not affect the gastrointestinal
system. See N.T., Hearing, 3/26/18, at 22, 34, 65-66. Child was treated at
PCI for approximately one month and discharged to Mother’s care in July
2017. See N.T., Hearing, 9/7/17, at 78-80.
In late July 2017, Child began seeing a new primary care physician and
was seen by the CHOP Diagnostic Center, both of whom expressed concerns
with Mother’s continued demands for increased medical intervention, testing,
and pain medication. See id., at 80-81. By this point Child was wheelchair-
dependent. See id.
On August 3, 2017, CHOP admitted Child after she stopped speaking
and moving voluntarily. See id., at 84. Following an evaluation by several
specialists, Child was again diagnosed with conversion disorder and the EDS
diagnosis was confirmed. See id., at 83. Child’s condition worsened, and she
required a nasogastric tube for feeding, was wearing a diaper, and could not
complete any activities of daily living. See id., at 83-84.
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3 “Hypermobile Ehlers-Danlos syndrome is an inherited connective tissue
disorder that is caused by defects in a protein called collagen.” U.S.
Department of Health, National Institute of Health, Hypermobile Ehlers-Danlos
syndrome, available at
https://rarediseases.info.nih.gov/diseases/2081/hypermobile-ehlers-danlos-
syndrome (last visited October 31, 2018).
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Mother continued to obstruct psychological care and Child’s condition
worsened in Mother’s presence. See id., at 86-87. Child suffered pseudo-
seizures only in Mother’s presence, and was more compliant with treatment
when Mother was not present. Mother insisted on further unnecessary testing
and medication, including cardiac monitoring and anti-seizure medications.
See id., at 86-88.
On August 23, 2017, the Department of Human Services (“DHS”)
received a general protective services report regarding Child, Mother, and
Child’s medical issues. The report further alleged that Mother had obstructed
and refused treatment for Child, and requested increased medical
interventions despite being told that Child’s symptoms were psychological in
nature. Mother had a history of anxiety disorder and there were concerns of
medical neglect and child abuse by Mother, specifically, Munchausen
Syndrome by Proxy.4 On August 25, 2017, the report was upgraded to a child
protective services (“CPS”) report.
On August 29, 2017, DHS, upon application, obtained an order for
protective custody (“OPC”). A shelter care hearing was scheduled and, on
August 31, 2017, the trial court lifted the OPC and ordered Child’s temporary
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4 “Factitious disorder imposed on another … formerly Munchausen syndrome
by proxy … is a mental illness in which a person acts as if an individual he or
she is caring for has a physical or mental illness when the person is not really
sick.” Cleveland Clinic, Factitious Disorder Imposed on Another,
https://my.clevelandclinic.org/health/diseases/9834-factitious-disorder-
imposed-on-another-fdia, available at last visited (October 31, 2018).
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commitment to DHS to stand. Mother was to have no contact with Child, who
was placed in a CHOP medical facility.
On September 6, 2017, DHS filed a dependency petition alleging child
abuse and aggravated circumstances. The next day, the court began hearing
evidence regarding the dependency petition and the requested findings. Dr.
Phil Scribano, a pediatrician who observed Child during her hospitalizations at
CHOP, testified regarding those hospitalizations. See N.T., Hearing, 9/7/17,
at 41-103. Dr. Scribano testified that, in his expert opinion, based on the facts
above, Child was the victim of medical child abuse via Munchausen Syndrome
by Proxy. See id., at 89-92. Since being separated from Mother and provided
with intensive psychiatric and psychological treatment, Child has shown some
improvement, although time would be needed to get her stabilized. See id.
Dr. Scribano believed that Child’s improvement would be impossible in the
presence of Mother. See id.
On December 1, 2017, following an additional hearing, the court
adjudicated Child dependent.5
On March 26, 2018, the court held a permanency review hearing and
took further evidence regarding the aggravated circumstances and child abuse
allegations. Dr. Scribano appeared once more for cross-examination.
Additionally, Adrienne Redguard, DHS social worker, testified for DHS. Ms.
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5 The notes of testimony from the December 1, 2017 hearing are not included
in either the certified or the reproduced record. As Mother does not challenge
the court’s finding of dependency, our analysis is unaffected.
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Redguard testified that she spoke with Child, who was still hospitalized at
CHOP. See N.T., Hearing, 3/26/18, at 106-111. Child informed Ms. Redguard
that she had a plan to harm herself if she was returned to Mother’s care, and
that Mother had “really f’d her up.” Id., at 109. Child stated that prior to her
illness, she had not had a close relationship with Mother, who called her stupid,
dumb, and ugly; Child felt that the illness “forced” her to rely on her mother.
Id., at 113.
Additionally, hospital summaries and records related to Child’s care were
admitted as exhibits. See DHS Exhibit 3. The summaries reveal a pattern of
interference, abusive behavior, and threatening language towards hospital
staff by Mother. For example, on one occasion security was called to Child’s
room at Nemours due to Mother’s behavior. See id. In another incident, when
informed that Child was suffering from pseudo-seizures, Mother said to the
nurse, “If I punch you in the face and call it a pseudo-punch, does that make
it not real?” Id.
Mother testified in her own defense. She stated that her relationship
with Child, prior to her hospitalization, was good. See id., at 133-134. She
stated she had always accepted the diagnosis of conversion disorder and
denied interfering with Child’s medical treatment or any intent to make Child
sick. See id., at 134-68. Mother did admit to complaining on social media
about the care Child received. See id., at 167, 183-86, 190-91.
At the conclusion of the hearing and following the argument of counsel,
the court found clear and convincing evidence of child abuse under § 6303 of
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the Child Protective Services Law (“CPSL”), 23 Pa.C.S.A. §§ 6301, et seq., and
ordered the August 25, 2017 CPS report changed from indicated to founded.
Additionally, the trial court found clear and convincing evidence of aggravated
circumstances under § 6302 of the Juvenile Act, 42 Pa.C.S.A. §§ 6301, et seq.
Mother timely appealed and filed her statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Mother
raises the following issues for our review:
A. Did the trial court commit reversible error when it made a
finding that the child was a victim of child abuse by [Mother] as
defined at 23 Pa.C.S. § 6303, where such determination was not
supported by clear and convincing evidence under the Child
Protective Services Law, 23 Pa.C.S. § 6303(B.1)?
B. Did the trial court err in its aggravated circumstances order
when it determined that there was clear and convincing evidence
presented to establish aggravated circumstances for abuse of a
child existed [sic] as to [Mother] under 42 Pa.C.S. § 6302(2)[?]
Mother’s Brief, at 3.
The 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. We review for abuse of discretion[.]
In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (quotation marks and citation
omitted).
As noted, Mother does not appeal the trial court’s finding of dependency.
Instead, she challenges the court’s findings of child abuse and aggravated
circumstances.
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“As part of the dependency adjudication, a court may find a parent to
be the perpetrator of child abuse,” as defined by the CPSL. In re L.Z., 111
A.3d 1164, 1176 (Pa. 2015). “In cases of child abuse, a court’s finding as to
the identity of the abusers need only be established by prima facie evidence
that the abuse normally would not have occurred except by reason of acts or
omissions of the caretakers.” In re R.P., 957 A.2d 1205, 1217–1218 (Pa.
Super. 2008) (internal quotation marks, emphasis, and citations omitted).
The CPSL defines “child abuse” as follows, in relevant part:
(b.1) Child abuse.--The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
***
(1) Causing bodily injury to a child through any recent
act or failure to act.
(2) Fabricating, feigning, or intentionally exaggerating
or inducing a medical symptom or disease which
results in a potentially harmful medical evaluation or
treatment to the child through any recent act.
(3) Causing or substantially contributing to serious
mental injury to a child through any act or failure to
act or a series of such acts or failures to act.
***
23 Pa.C.S.A. § 6303(b.1)(1)-(3).
Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 23 Pa.C.S.A. § 6303(a). Serious mental injury is defined as
“[a] psychological condition, as diagnosed by a physician or licensed
psychologist, including the refusal of appropriate treatment, that: (1) renders
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a child chronically and severely anxious, agitated, depressed, socially
withdrawn, psychotic or in reasonable fear that the child's life or safety is
threatened; or (2) seriously interferes with a child’s ability to accomplish age-
appropriate developmental and social tasks.” Id.
In defining intentionally, knowingly, and recklessly, the CPSL refers to
the Crimes Code definitions, in relevant part:
(b) Kinds of culpability defined.--
(1) A person acts intentionally with respect to a
material element of an offense when:
(i) if the element involves the nature of his
conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to
cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of
such circumstances or he believes or hopes that
they exist.
(2) A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that
such circumstances exist; and
(ii) if the element involves a result of his
conduct, he is aware that it is practically certain
that his conduct will cause such a result.
(3) A person acts recklessly with respect to a material
element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk
must be of such a nature and degree that, considering
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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.A. § 302(b)(1)-(3).
First, Mother claims that the court abused its discretion in finding clear
and convincing evidence that Child was the victim of child abuse by Mother.
Mother contends that the evidence presented at the hearing did not establish
by clear and convincing evidence that she intentionally, knowingly, or
recklessly caused bodily injury to Child through an act or failure to act. Mother
further notes that the court did not identify which subsection of 23 Pa.C.S.A.
§ 6303(b.1) it relied upon to make its ruling, but that Mother does not meet
the first three subsections of child abuse definitions.
Here, the trial court’s opinion does not discuss the definitions and case
law discussed above, nor does it note the definition under which it found
Mother had committed child abuse. See Trial Court Opinion, 7/19/18, at 4-5.
Instead, the trial court focuses on extensive fact finding and, in legal analysis,
almost solely on the Juvenile Act’s definition of aggravated circumstances.
Nevertheless, “if the established facts support a legal conclusion producing
the same outcome,” an appellate court may uphold an order of the lower court
for any valid reason appearing from the record. In re A.J.R.-H., 188 A.3d
1157, 1176 (Pa. 2018).
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We conclude that the trial court properly found that Mother committed
child abuse pursuant to 23 Pa.C.S.A. § 6303(b.1)(2), “[f]abricating, feigning,
or intentionally exaggerating or inducing a medical symptom or disease which
results in a potentially harmful medical evaluation or treatment to the child
through any recent act.”
Here, Child was brought to three different hospitals over the course of
a seven-month period, and she was admitted for extensive lengths of time.
Child was diagnosed with conversion disorder, and intensive behavioral health
and psychiatry evaluation and treatment were recommended. However,
Mother refused to accept that there was not a medical explanation for Child’s
symptoms, and continued to interfere in her treatment, requesting more
invasive testing and medications, before Child was discharged to her care.
Child was subsequently hospitalized in two additional hospitals prior to
returning to CHOP; at both hospitals Mother, again, interfered with Child’s
treatment, refused to accept a psychological diagnosis, and was aggressive
towards staff. At Nemours, Child underwent further invasive testing, including
a lumbar puncture. Nevertheless, under Mother’s care, Child’s condition
continued to deteriorate until she could no longer complete age-appropriate
activities of her daily life. Mother continued to insist on unnecessary
treatments and accommodations for Child such as a chair lift and pain
medication. By the time of Child’s August 2017 hospitalization at CHOP,
Mother was insisting on anti-seizure medications and cardiac monitoring.
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Overall, Child was subjected to blood tests, x-rays, ultrasounds, brain
and spine MRIs, a spinal tap, and EEGs. Mother’s interference was such that
Child’s care team barred Mother from visits and, only then, did Child begin to
show some improvement.
Further, DHS presented the uncontroverted testimony of Dr. Scribano.
The trial court found this testimony credible and insightful. Dr. Scribano
testified with a reasonable degree of medical certainty that Child was the
victim of medical child abuse and neglect through Mother’s factitious disorder
imposed on another, formerly Munchausen syndrome by proxy. Dr. Scribano
explained the situation as follows:
It is comprised of a caregiver who either exaggerates or
embellishes or induces illness . . . . The issues often result in over-
medicalization or overuse and insistence on testing and
procedures and medications and diagnoses that are either unable
to be confirmed by objective data or just don’t exist, they’re
factitious . . . . And it’s a debilitating illness for a child to have that
exposure, and in some cases, children then start to assume that
behavior and, in their belief system, come to think that there are
these medical conditions that are not real for themselves . . .
N.T., Hearing, 9/7/17, at 25.
Indeed, that is what happened here. As the trial court observed,
Mom was . . . over-medicalizing the situation. I believe Dr.
Scribano when he testified that [M]other’s inserting herself in the
medical treatment . . . created a dynamic that made it difficult, if
not impossible, for them to implement an appropriate course of
treatment that would allow [Child] to improve in terms of her
medical condition . . . [Mother] circumvented trying to have those
[psychological] assessments done . . . . I don’t even think [she
was] given a fair opportunity to absolutely engage in mental
health services to see if there was an improvement. I think that
mom is very smart. You know, I think that, in this particular case,
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with her [nursing] background, that it was detrimental to the child
...
N.T., Hearing, 3/26/18, at 206-208. Although Mother denied interference, her
denials are not consistent with the documentation of either hospital. The trial
court found her testimony not credible. See id., at 209.
Mother, a nurse by profession, was informed by three separate hospitals
and teams of doctors that Child’s symptoms were psychological in nature and
that extensive behavioral health treatment would be necessary, and she was
informed of the consequences of not providing the recommended treatment.
Rather than accepting the diagnosis, Mother, with a greater than average
understanding of medical treatment and side effects, continued to take Child
to different doctors, subjecting her to increased medical interventions, until
Child was non-responsive, required tube feeding, and hospitalization.
Mother consciously disregarded a substantial and unjustifiable risk that
Child would be harmed by her conduct. Nor would the abuse have occurred
absent the actions of Mother, who was Child’s primary caretaker. See In re
R.P., 957 A.2d at 1217–1218. Accordingly, the court did not err in finding
clear and convincing evidence that Mother had committed child abuse.
Next, Mother claims that the court erred in finding that aggravated
circumstances existed as to Mother. She contends that insufficient evidence
was presented to establish that she intentionally caused Child physical abuse
resulting in serious bodily injury or that she engaged in aggravated physical
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neglect. The Juvenile Act defines “aggravated circumstances” as any one of
the following, in relevant part:
(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 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.
Here, the evidence as discussed above establishes that Child was the
victim of Mother’s aggravated physical neglect resulting in a serious
impairment of her functioning. At the time of Child’s last admission to CHOP,
she was unresponsive and unable to eat, use the bathroom, or undergo any
physical activities on her own. Expert medical testimony established that it
was Mother’s actions—questioning the conversion disorder diagnosis,
preventing Child from obtaining mental health treatment, and insisting on
invasive and unnecessary medical intervention—which resulted in Child’s
ailments. The trial court did not err in determining that aggravated
circumstances existed as to Mother.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/18
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