J-S67014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: J.S., MOTHER :
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:
:
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: No. 1375 MDA 2019
Appeal from the Dispositional Order Filed July 16, 2019
In the Court of Common Pleas of Adams County Juvenile Division at
No(s): CP-01-DP-0000026-2019
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JANUARY 07, 2020
Appellant, J.S. (“Mother”), appeals from the dispositional order filed on
July 16, 2019, adjudicating dependent her male child, J.D. (born in June of
2018) (the “Child”). We affirm.
The trial court summarized the facts of this case as follows:
[O]n May 3, 2019, the Child, an eleven-month-old infant at the
time, was left unsupervised in the bathtub with two other children
who were five and seven years old respectively. At the time, the
Child was in the care of R.D., his natural father (“Father”),[1] at a
residence shared [periodically with Mother]. Apparently, Father
left the bathroom while all three children were in the bathtub with
the water running. The Child was under the faucet when one of
the other children turned off the cold water. Father heard the
Child scream and estimated it took him approximately 30
second[s] to get to the bathtub. He claimed to have observed a
red mark on the Child and described the Child to be inconsolably
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* Former Justice specially assigned to the Superior Court.
1 Father is not a party to this appeal.
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crying for approximately five minutes after the incident. Mother
was not home at the time. Both parents, however, were aware
that the water heater was set to “very hot” which is approximately
160 degrees. Both parents also acknowledged that the faucet
handles were misidentified with the “H” on the cold handle and
“C” on the hot handle.
Father provided Adams County Children and Youth Services
(“Agency”) with conflicting stories as to when he recognized the
Child was seriously injured. He claimed he saw blisters on the
Child while the Child was crawling on the floor. He clarified the
Child had a wet shirt and when he checked the source of the
wetness, he noticed the blisters. Later, however, he changed his
story to indicate that he first observed blisters the next day while
[he, the Child, and Mother were] at a car dealership. Mother
indicated to the Agency caseworker that she was unaware of the
injuries until noticing the same at the car dealership. She claimed
to have first observed the Child’s shirt to be wet in the back which
caused further investigation during which she observed the Child’s
back to be blistering. Mother claims Father never told her about
the incident prior to her observations at the dealership. She noted
the Child was asleep when she returned from work on May 3,
2019. She acknowledged she dressed the Child, including
changing the Child’s diaper, on the morning of May 4, 2019 but
did not notice anything unusual. She described the Child as
generally being in good spirits.
After the observations at the dealership, Mother took the Child to
Urgent Care, [which] directed her to go to the Hanover Hospital.
When seen at Hanover Hospital, the Child was transferred to
Lehigh Valley Children’s Hospital. At Lehigh Valley, he was
diagnosed with [second-degree burns to] five percent [of his] total
body surface area[, specifically located on] his posterior torso.
The Child’s upper torso had first[-]degree burns. The Child was
admitted to the hospital for approximately two days for burn
surgery, treatment, and recovery.
At [the dependency] hearing [on July 15, 2019], the Agency called
Dr. Ruchita Doshi, the pediatric hospitalist and member of the
child protection team at Lehigh Valley Hospital. The parties
stipulated to her qualifications. Dr. Doshi testified that during the
18 to 20 hours the Child went without treatment, the extent of
Child’s injuries worsened. She described the burns as being very
painful and, due to the nature of the injury, it was likely the Child
was obviously suffering, was inconsolable, and would have been
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noticeably fussy throughout the day. Her notes reflected that
Mother confirmed the Child’s fussiness on the day following the
incident. In her opinion, medical care should have been
immediately sought for the Child. Dr. Doshi concluded that diaper
changes and outfit changes would have revealed the injury and,
in her opinion, it is medical neglect to not note such a significant
burn. In addition to Dr. Doshi’s testimony, the Agency presented
pre-surgery photographs of the Child’s injuries on the day he was
admitted to the hospital.
Trial Court Opinion, 9/10/2019, at 1-4. On July 16, 2019, the trial court
entered an order adjudicating the Child dependent, citing serious physical
neglect pursuant to 23 Pa.C.S.A. § 6303. This timely appeal resulted. 2
On appeal, Mother presents the following issues for our review:
I. Did the [t]rial [c]ourt abuse its discretion and/or make an
error of law in finding that [the Agency] proved by clear and
convincing evidence that the [Child], is dependent when
there was competent evidence establishing that: Mother
was not home at the time that the [C]hild sustained the
injury; the [C]hild did not present with symptoms of
distress/pain; Mother sought medical treatment
immediately upon learning of the injury; and no other
concerns for the [C]hild’s care and well-being were raised
or identified.
II. Did the [t]rial [c]ourt abuse its discretion and/or make an
error of law in finding that [the Agency] proved by clear and
convincing evidence that the [Child], is a victim of serious
physical neglect for lack of medical care/treatment by his
Mother, pursuant to 23 Pa.C.S.A. [§] 6303 when there was
competent evidence establishing that: Mother was not
home at the time the [C]hild sustained the injury; the
[C]hild did not present with symptoms of distress/pain; []
Mother sought medical treatment immediately upon
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2 Mother filed a notice of appeal on August 14, 2019. She filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on August 15, 2019. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on September 10, 2019.
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learning of the injury; and no other concerns for the
[C]hild’s care and well-being were raised.
Mother’s Brief at 19.
Mother’s issues are inter-related, so we will examine them together.3
Mother first claims that the Agency failed to meet its burden of proving by
clear and convincing evidence that Mother failed to secure timely medical care
for the Child, amounting to serious physical neglect. Id. at 21-22. She claims
the trial court’s decision “was based primarily on speculation, innuendo, and
suspicion as to what Mother should have seen, or the timeline in which she
should have acted on the [C]hild’s behalf.” Id. at 21. Additionally, Mother
posits that the trial court’s statement that hospital photographs taken
immediately after the Child’s admission, showed that Child’s “left butt cheek”
was “burning red” was contrary to the evidence presented. Id. at 22-23.
More specifically, Mother suggests that the hospital photographs and
testimony from Dr. Doshi indicated that the Child’s injuries were limited to his
“posterior torso, which is his back.” Id. She maintains that the trial court
erred by focusing “on the fact that Mother did not see or observe the injury
when changing the [C]hild’s diaper and dressing him for the day[,]” because
the Child’s injuries were higher up on his body and outside of her view. Id.
at 22. Thus, Mother contends that “[t]here is reliable evidence that [] Mother
was completely ignorant to the incident in the bathtub until the following
afternoon when she first saw [a] blister and confronted Father.” Id. at 17.
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3 In fact, Mother does not separate the issues into different sections in her
appellate brief and, instead, addresses both issues together.
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Finally, Mother argues that the trial court “completely disregarded the credible
testimony of Lisa Watson, the Hanover Honda saleswoman, an objective
third[-]party with no ties to Mother or Father” who described the Child as
“pleasant, active, eating, and smiling” just prior to his admission to the
hospital. Id. at 24-25.
Our standard of review for dependency cases as follows.
[T]he standard of review in dependency cases requires an
appellate court to accept the 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. Accordingly, we
review for an abuse of discretion.
In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (citation omitted). “The trial
court is free to believe all, part, or none of the evidence presented and is
likewise free to make all credibility determinations and resolve conflicts in the
evidence.” Interest of T.G., 208 A.3d 487, 490 (Pa. Super. 2019) (citation
omitted). “Even if an appellate court would have made a different conclusion
based on the cold record, [it is not] in a position to reweigh the evidence and
the credibility determinations of the trial court.” In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). Instead, we view the evidence in the light most favorable
to the Agency as the verdict winner. Matter of B.R., 596 A.2d 1120, 1123
(Pa. Super. 1991) (citation omitted).
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To adjudicate a child dependent, a trial court must determine, by clear
and convincing evidence,4 that the child:
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. “The failure to provide a child with adequate essentials
of life, including food, shelter or medical care” constitutes “serious physical
neglect.” 23 Pa.C.S.A. § 6303.
Here, the trial court determined:
[…] Dr. Doshi credibly testified that injuries of the extent suffered
by the Child would be extremely painful and undoubtedly cause
the Child to be inconsolable and fussy. Dr. Doshi further indicated
that such conduct by an 11-month-old would reasonably alert a
guardian to uncover the cause. Mother’s testimony to the
contrary was simply not credible in light of this testimony and
every day human experience. Nevertheless, even absent Dr.
Doshi’s opinion, there is objective evidence in the record which
supports the [trial c]ourt’s decision.
Mother testified that she changed the Child’s diaper on the
morning after the incident. She claimed [not] to have [] observed
anything unusual even though she was paying particular attention
to the Child’s cleanliness as he previously suffered from a yeast
infection. She further acknowledged changing his diaper later in
the day without any unusual observations. The photographic
evidence, however, completely contradicts Mother’s claim. The
photos show significant burns on the Child’s posterior which would
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4 “Clear and convincing” evidence has been defined as testimony that is “so
clear, direct, weighty, and convincing as to enable the trier of facts to come
to a clear conviction, without hesitancy, of the truth of the precise facts in
issue.” In re A.B., 63 A.3d at 349 (citation omitted).
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have been readily observed by anyone who was changing the
Child’s diaper. Moreover, it is inconceivable that the mere
positioning of the Child for cleaning and replacing the diaper would
not [] reveal visual signs of significant injury [nor disclose]
obvious discomfort for the Child. Mother’s argument to the
contrary is simply incredible.
Trial Court Opinion, 9/10/2019, at 4-5.
Moreover, the trial court noted that Mother minimized the extent of the
Child’s injuries when she testified that she did not think much of the injury, it
appeared to be “just a blister,” and that a medicated cream would suffice to
treat the affected area. Id. at 5 n.3. Mother also stated that she believed
that Father’s actions following the incident were appropriate. Id. The trial
court found these contentions incredible in light of Dr. Doshi’s testimony that
the Child suffered from significant burns that required surgery, pain
medication, and an extended hospital stay. Id.
Upon review of the certified record, including the photographs taken at
the hospital, we discern no abuse of discretion or error of law in finding the
Child dependent based upon a failure to secure prompt medical care.
Essentially, Mother asks us to view the evidence in the light most favorable to
her and to credit her own testimony and the testimony of the witnesses she
presented, which we cannot do. Mother claims that she first noticed the
Child’s burn injuries while shopping at a car dealership many hours after the
incident. She claims that the evidence she presented showed that the Child
was not displaying signs of distress. The trial court, however, was free to
reject this testimony. Moreover, the Agency presented medical testimony that
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explained that the type of injuries the Child sustained were extremely painful
and a non-verbal child would express pain by crying or acting fussy to alert a
caregiver of its condition. The trial court was also presented with the hospital
photographs showing the Child’s pervasive injuries, which covered
approximately 5% of his body area. These photographs were objectively
verifiable facts that refuted Mother’s version of events. The injuries were
instantly recognizable and significant. Essentially, the trial court determined
that Mother knew about the burns, but minimized Father’s role in the incident
and the effect the injuries had on the Child. The evidence and testimony also
led the trial court to conclude that Mother only went to the hospital when the
injuries worsened, blistering from first-degree burns to second-degree burns.
As a result, the trial court determined that Child was without essential medical
care which endangered his health, safety and welfare. Accordingly, the Child
was deemed to be at risk and properly declared dependent. Based upon our
standard of review and the record before us, we discern no abuse of discretion
or error of law and Mother’s appellate claims fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/07/2020
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