J-S45001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.S., MOTHER
No. 209 EDA 2019
Appeal from the Order Entered December 18, 2018
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-DP-0001266-2018
IN THE INTEREST OF: N.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.S., MOTHER
No. 211 EDA 2019
Appeal from the Order Entered December 18, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001273-2018
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2019
T.S. (“Mother”) appeals from the orders of disposition entered
December 18, 2018, in which the trial court adjudicated her two children, M.M.
(born in December of 2011) and N.M. (born in November of 2009) (collectively
“Children”), dependent and found child abuse as to M.M. by Mother. We
affirm.1
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* Retired Senior Judge assigned to the Superior Court.
1Various procedural issues arose due to Mother’s filing of the appeals pro se,
and submitting pro se Pa.R.A.P. 1925(a)(2)(i) and (b) concise statements of
errors complained of on appeal, while she was still represented by private
counsel, Reginald C. Allen, Esq. Attorney Allen was directed to file Rule
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This case began following the filing of dependency petitions for both
Children by the Department of Human Services (“DHS”), wherein DHS alleged
that Mother perpetrated child abuse on M.M. In its Pa.R.A.P. 1925(a) opinion,
the trial court stated that it heard testimony from thirteen witnesses over the
course of four hearings that were held on September 17, 2018, October 3,
2018, December 10, 2018, and December 18, 2018. Beginning on page 3 and
extending to page 22 of its opinion, the court provided an extensive discussion
relating to the testimony of each witness who testified at the hearings. It then
provided the following conclusions regarding its determination that Mother
was the perpetrator of child abuse as to M.M. and would likely inflict similar
abuse on N.M.
Based upon the credible expert testimony of three (3) doctors this
[c]ourt found clear and convincing evidence that Mother’s acts of
exaggerating medical symptoms to various medical facilities and
making misrepresentations to each medial [sic] team[], resulting
in an unnecessary full-length hard cast and unnecessary medical
procedures wherein M.M. was given anesthesia when it was not
medically necessary, was child abuse as to M.M.
Further, Mother’s exaggeration of medical symptoms and
misinformation to multiple medial [sic] facilities, inflicting child
abuse upon M.M., is a valid predictive behavior as creating a
potential safety risk for Mother’s other Child, N.M. This [c]ourt
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1925(b) statements and to respond to a rule to show cause in that dual
representation is in contravention of the policy precluding hybrid
representation. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa.
2011). After Attorney Allen filed a motion to withdraw as counsel, which was
granted, the trial court appointed Gary Sanford Server, Esq., to represent
Mother. Additionally, Attorney Server complied with this Court’s order
directing him to file amended Rule 1925(b) statements. We also note that on
January 23, 2019, this Court consolidated the two appeals.
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found M.M. had suffered child abuse of such nature as would
ordinarily not be sustained or exist except for the actions of
Mother. Mother’s exaggeration of M.M.’s ankle injury, Mother’s
misinformation of an MRI and fracture diagnosis, Mother’s
exaggeration of M.M.’s level of constipation and lack of urination,
Mother’s rejection of lesser invasive forms of treatment, and
Mother’s March and May 2018 indicated CPS [Child Protective
Service] reports, resulted in M.M. receiving potentially harmful
medical evaluations and treatments. The credible substantial
evidence heard by this [c]ourt established a prima facie case that
[] Mother was the perpetrator of the abuse. Mother, as the sole
caretaker, is [a fact that is] not in dispute by any party. Regarding
the Department’s request for a finding of child abuse as to N.M.,
this [c]ourt did not make a finding of child abuse for N.M. against
Mother[,] but addressed its concern that Mother created a
reasonable likelihood of bodily injury to N.M. through her actions
as N.M. has also on several occasions throughout the years been
brought to [the] primary care facility by Mother with medical
complaints despite the fact that N.M. appeared well. Therefore,
this [c]ourt found clear and convincing evidence that Mother was
the perpetrator of the abuse as to M.M.
Trial Court Opinion (TCO), 4/15/19, at 28-29 (unnumbered).
The trial court’s opinion also discussed the basis for its conclusion that
Children were dependent, stating:
This [c]ourt heard credible evidence from the DHS Intake Worker,
Ms. Iris Pizarro, who noted that she made contact with this family
prior to [] Children[’s] being removed from Mother in May 2018
and being taken into Protective Custody. She noted that she
received a CPS report in March 2018, regarding [] Child, M.M.[,]
that M.M. had undergone numerous x-rays with regard to having
a fracture that actually wasn’t in existence. She stated that when
she went to the home to observe [] Children, she saw that both
Children had been kept home from school and had been observed
to be running around and playing, appearing well. Ms. Pizarro
indicated this report after reviewing M.M.’s medical records
surrounding the foot injury and speaking with medical personnel.
Ms. Pizarro then testified that in May 2018, after having just
visited the family five (5) days prior to implement[ing] a safety
plan wherein Mother would contact maternal grandfather if she
believed [] Children were ill and then escalate to call[ing]
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Children’s primary [doctor], Dr. Sutherland, before Mother would
take either of the Children to a hospital, etc.[,] that Mother[] had
taken M.M. to the emergency room for a constipation issue and
that Mother was not allowing a lesser [invasive] measure to be
performed, insisting on a procedure that involved anesthesia, an
[operating room] visit and a manual disempaction of the victim
[C]hild M.M. Ms. Pizarro indicated that both [C]hildren appeared
fine when she went to see them in Mother’s home and that she
removed them from Mother’s care and indicated this report based
upon review of M.M.’s medical records and conversation she had
with the medical team. Ms. Pizarro indicated that she removed
both Children due to Mother’s self-reported mental health history
and that the manner in which Mother reports M.M.’s medical
issues was equally concerning for N.M. as she feared that neither
Child could be safely maintained in Mother’s care. This [c]ourt
agreed that neither Child could be safely maintained in Mother’s
care. Specifically, this [c]ourt’s finding of clear and convincing
evidence that Mother was the perpetrator of child abuse as to M.M.
was th[e] basis for this [c]ourt’s adjudication of M.M.
Furthermore, this [c]ourt determined that the circumstances
giving rise to M.M.’s adjudication were so concerning that Mother
also created a potential safety risk for N.M. and therefore served
as a basis for N.M.’s adjudication.
Therefore, this [c]ourt found that DHS had shown by clear and
convincing evidence that in addition to a finding of child abuse
against Mother as [] Children were without proper parental care,
and that such care was not available immediately due to Mother’s
mental health. The testimony heard by this [c]ourt was clear,
direct, weighty and convincing that [] Children’s health, safety and
welfare were at risk, and thus [] Children were adjudicated
dependent.
Id. at 30-31 (unnumbered) (footnote omitted).
On January 10, 2019, Mother filed the pro se notices of appeal, and as
noted in footnote 1 supra, the amended concise statements were filed by
Attorney Server on February 27, 2019. Although Attorney Server’s amended
statements contained five issues based upon those Mother had raised in her
pro se statements, he explains that following his review of the record and
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transcripts of the hearings, prior counsel’s file, and the trial court’s opinion,
dated April 15, 2019, he determined that three of the issues did not have
merit and were “tangential to the findings of dependency and child abuse[.]”
Mother’s brief at 6 (footnote). Therefore, Attorney Server only provides a
combined argument in Mother’s brief in relation to the following two issues on
appeal:
I. Did the [c]ourt err when it found that there was clear
and convincing evidence that Mother was the perpetrator of
child abuse as to M.M.?
II. Did the [c]ourt err when it found that there was clear
and convincing evidence that M.M. and N.M. were both
dependent due to present inability where the [c]ourt based
the adjudications solely upon the perpetration of child abuse
as to M.M.?
Id.
Mother’s argument challenges the sufficiency of the evidence to support
the trial court’s decision that M.M. was abused by Mother in that Mother
exaggerated M.M.’s symptoms relating to M.M.’s gastrointestinal problem and
her injured foot, and sought more invasive treatment than was necessary.
Moreover, Mother argues that the court further erred in finding that the abuse
of M.M. created a potential safety risk for N.M. Specifically, Mother relies on
her own witnesses’ testimony that she is a caring Mother who could not stand
by and watch her daughter suffer. She also relies on medical records and
various doctors’ testimony as to M.M.’s diagnoses, claiming she did not
“fabricate or exaggerate” the doctors’ diagnoses. Id. at 27. Essentially,
Mother claims that she “did what any reasonable, sensitive and protective
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parent would do: she questioned the [doctors’] judgment[s] and she made []
recommendation[s] to [the doctors] based on past experience with her child.”
Id. at 28. Mother also argues that because there was insufficient evidence to
support any finding as to abuse, the court likewise erred in finding Children
dependent in that the court’s decision was based on speculation. Lastly, in
her brief Mother acknowledges that there are some factual discrepancies for
the trial court to resolve, however, she contends that the court’s errors rest
on its inferences, deductions and conclusions, which are not supported by
clear and convincing evidence.
The Pennsylvania Supreme Court sets forth our standard of review of a
dependency case, stating:
Initially, we reiterate that “the 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.” In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190
(2010). We review for abuse of discretion, id. ….
[Moreover,] the applicable version of the CPSL[2] define[s]
“child abuse” to include “any recent act or failure to act” which
causes “nonaccidental serious physical injury;” “any recent act,
failure to act or series of such acts or failures to act” “which
creates an imminent risk of serious physical injury;” or “serious
physical neglect” “which endangers a child’s life or development
or impairs the child’s functioning.” 23 Pa.C.S. § 6303(b)(1)(i),
(iii), (iv)…. In turn, the CPSL defined “serious physical injury” as
an injury that causes “severe pain” or “significantly impairs” the
child’s physical functioning temporarily or permanently. Id. §
6303(a). While a petitioning party must demonstrate the
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2 Child Protective Services Law, 23 Pa.C.S. §§ 6301 et seq.
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existence of child abuse by the clear and convincing evidence
standard applicable to most dependency determinations, 42
Pa.C.S. § 6341(c) (recognizing clear and convincing evidence as
the necessary standard for concluding that a child is dependent),
the identity of the abuser need only be established through prima
facie evidence in certain situations….
In re L.Z., 111 A.3d 1164, 1174 (Pa. 2015).
For the definition of prima facie evidence in the context of a child abuse
case, we look to Section 6381 of the CPSL, which provides the following:
6381. Evidence in court proceedings.
...
(d) Prima facie evidence of abuse.—Evidence that a child has
suffered child abuse of such a nature as would ordinarily not be
sustained or exist except by reason of the acts or omissions of the
parent or other person responsible for the welfare of the child shall
be prima facie evidence of child abuse by the parent or other
person responsible for the welfare of the child.
23 Pa.C.S. § 6381(d). Moreover,
[w]ith regard to dependency cases involving child abuse,
the safety of the child is paramount. In re R.P., 957 A.2d 1205
(Pa. Super. 2008). As we have explained,
[t]he Juvenile Act, 42 Pa.C.S. §§ 6301-65, which was
amended in 1998 to conform to the federal Adoption and
Safe Families Act (“ASFA”), 52 U.S.C. § 671 et seq.,
controls the adjudication and disposition of dependent
children. The policy underlying these statutes aims at
the prevention of children languishing indefinitely in
foster care, with its inherent lack of permanency,
normalcy, and long-term parental commitment.
Furthermore, the 1998 amendments to the Juvenile Act,
as required by ASFA, place the focus of dependency
proceedings on the child. Safety, permanency, and the
well-being of the child must take precedence over all
other considerations, including the rights of the parents.
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Id. at 1217-18 (some internal citations omitted).
Interest of S.L., 202 A.3d 723, 727 (Pa. Super. 2019).
Additionally, we note that the CPSL defines “child abuse” as follows:
(b.1) Child abuse.—The term “child abuse” shall mean
intentionally, knowingly or recklessly doing any of the following:
...
(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.
23 Pa.C.S. § 6303(b.1)(2). We also recognize that Section 6303(a) of the
CPSL defines bodily injury as “impairment of physical condition or substantial
pain.” Moreover, “a finding of dependency can be made on the basis of
prognostic evidence and such evidence is sufficient to meet the strict burden
of proof necessary to declare a child dependent.” In re R.W.J., 826 A.2d 10,
14 (Pa. Super. 2003).
The thrust of Mother’s entire argument is that the inferences and
conclusions reached by the trial court are not supported by clear and
convincing evidence. We disagree. Many of Mother’s contentions rest on facts
elicited through her testimony and that of her witnesses and that the
testimony by the doctors or agency personnel was not credible. However, the
trial court found neither Mother nor Mother’s psychiatrist, Dr. Frankel,
credible. With regard to Dr. Frankel, the court noted:
Dr. Frankel, by his own admission did not properly perform
Mother’s psychiatric evaluation in that he missed key aspects of
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the assessment which may have confirmed or ruled out Mother
having factitious disorder by proxy. Specifically, Dr. Frankel did
not speak with either of the Children in question nor did he review
any of their medical history outside of what Mother told him, he
also did not administer any structured progress tools as a part of
the evaluation; and most shockingly, despite being familiar with
the DSM-5 criteria for identifying factitious disorder by proxy, he
did not take into account the comments of the DSM-5 which
indicate that a diagnosis for factitious disorder by proxy could
include the exaggerating of symptoms, etc. For these reasons,
this [c]ourt discounted Dr. Frankel’s entire testimony and could
not afford any weight to Dr. Frankel’s evaluation.
TCO at 36 (unnumbered).
As for the other three witnesses presented by Mother, the court noted
that their testimony was limited in that they expressed that Mother appeared
to be a caring parent and was concerned about her children. However, the
court stated that “[n]one of [them] were able to testify regarding the medical
concerns at hand as they each lacked personal knowledge and had not seen
the [C]hildren in several months or several years.” Id.
Lastly, the court found Mother’s testimony not credible. In support of
this finding, the court set forth specific facts upon which it based its credibility
determination, stating:
Regarding Mother’s own testimony, this [c]ourt did not find
Mother to be credible. Mother testified that she carries multiple
degrees, including two Masters degrees and has a long history
working in fields involving children. Mother also testified to a long-
standing history of medical appointments for various ailments for
both Children and that for M.M. in particular, her gastroenology
[sic] needs date back to when she was two (2) months old. Given
Mother’s high levels of education and hands-on involvement with
both Children’s extensive medical histories, this [c]ourt did not
agree with Mother when she declared that she merely mistakenly
told Dr. Sutherland that M.M. had an MRI completed by Dr. Gross
which showed a fracture. Moreover, for Mother to have been so
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concerned that M.M. had a fracture that was still [] pain[ful,] to
take M.M. to Dr. Sutherland after having already been evaluated
twice, this [c]ourt found it odd that Mother did not feel like getting
[Children’s Hospital of Philadelphia (CHOP)] to conduct what
would have been CHOP’s second x-ray of M.M. as Mother “didn’t
feel like” driving from Dr. Sutherland’s office in West Philadelphia
to CHOP, which is also located in West Philadelphia. Instead,
Mother avoided CHOP altogether and went to Dr. Gross, outside
of the CHOP network, perhaps on purpose. This [c]ourt also did
not find credible Mother’s testimony that nobody told her that
M.M. had passed stool during the overnight stay at CHOP ER as
Dr. Grossman specifically asked Mother if he could try another
enema before giving M.M. anesthesia to verify whether or not
M.M. passed stool overnight. Dr. Grossman recounted that Mother
declined this less-invasive procedure when he made the request[,]
which suggests that Mother did in fact gain knowledge that M.M.
may have passed stool overnight.
Id. at 37-38 (unnumbered).
After a careful review of the extensive record in this case, we conclude
that the trial court’s credibility determinations are supported by competent
evidence. Moreover, our Supreme Court has directed that “we are not in a
position to make the close calls based on fact-specific determinations.” In re
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). “Not only are our trial judges observing
the parties during the hearing, but usually, … they have presided over several
other hearings with the same parties and have a longitudinal understanding
of the case and best interests of the child[ren] involved. Thus, we must defer
to the trial judges who see and hear the parties and can determine the
credibility to be placed on each witness….” Id. Consequently, based on those
credibility determinations, the trial court’s evaluation of its findings provided
the basis for the reasoning underlying its conclusions as to its dependency
orders. Additionally, Mother has failed to convince this Court that the trial
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court abused its discretion in this regard and as to its conclusion that Mother
abused M.M. We, therefore, affirm the trial court’s orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/19
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