J-A12041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: A.M.P., A MINOR

APPEAL OF: A.M.P.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1644 WDA 2016

Appeal from the Order September 30, 2016

In the Court of Common Pleas of Allegheny County 

Family Court at No(s): CP-02-DP-687-2016 - FID 02-FN-837-2016

BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.: FILED JULY 11, 2017

KidsVoice (“GAL”), guardian ad litem for A.M.P., appeals from the 

September 30, 2016, order dismissing the dependency petition filed by the 

Allegheny County Office of Children, Youth, and Families (“CYF”). We affirm.

The trial court made the following findings of fact:

[A.M.P.] was born [i]n November [], 2015; she is 10 months 

old. . . . [A.M.P.] has been diagnosed with failure to thrive. She 

currently weighs [13 pounds, 11 ounces. [A.M.P.] also has 

severe eczema. [A.M.P.] was admitted to Children’s Hospital of 

Pittsburgh on July 14, 2016, drastically underweight – 10 

pounds, 10 ounces. She was dehydrated with severe electrolyte 

deficiencies. Her condition was critical.

[A.M.P.] was breast fed for the first few months of her life. The 

doctors believe that [A.M.P.] has an allergy to milk including 

breast milk, which may be the source of her inflamed bowels, 

which would contribute to her not eating, and not gaining 

weight. While [A.M.P.] was at Children’s Hospital, there were 

attempts made to give her formula. [A.M.P.] refused a bottle. 

She was given [a nasogastric] tube (with some hesitation by 

[A.C. (“Mother”)]) and was able to gain a little more than [two] 
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pounds. On July 28, 2016, [A.M.P.] weighed 12 pounds, 14 

ounces at the time of her discharge from [Children’s Hospital].

She was discharged to the Children’s Institute for feeding 

rehabilitation. [A.M.P.] has an oral aversion that makes her 

reject bottles and some foods. . . . [A.M.P.] was in the Children’s 

Institute from July 28, 2016 until August 12, 2016. . . . [A.M.P.] 

weigh[ed] 12 pounds, 14 ounces at admission and 14 pounds, 1 

ounce upon discharge.

The recommended treatment for [A.M.P.’s eczema] is a topical 

steroid. Mother was reluctant to utilize the steroid because of 

concerns of negative side effects from the steroids as well as the 

possibility that [A.M.P.] might be allergic to the steroid creams. 

Mother finally relented and the eczema has dramatically 

improved on her body and extremities and slightly on her face. 

There are concerns with the fact that [M]other keeps changing 

[A.M.P.’s] primary pediatrician. [A.M.P.] is 10 months old and 

has had [four] pediatricians. The concern is continuity in 

treatment is important for a[n individual] with [A.M.P.’s] medical 

needs. Another concern is that [M]other may be doctor 

shopping to get the answers that she wants or to find a doctor 

who will agree with her. However, no doctor has provided a 

definitive answer as to why [A.M.P.] continues to lose weight, 

why [she] has an oral aversion[,] and why her eczema is so 

severe. It is just as likely that [M]other is changing doctors to 

get answers to these questions.

[A.M.P.] is unimmunized. The lack of immunizations would be 

more harmful to a[n individual] with [A.M.P.’s] medical 

conditions. As [of] September [29, 2016, A.M.P.] weighed 13 

pounds, 11 ounces, which means that she has lost nearly 1 

pound, since she was discharged from the Children's Institute. 

Continued malnutrition can affect brain and body development. 

Right now, [A.M.P.] seems to be developmentally on target. She 

is sitting up, she is making eye contact, she is speaking a few 

words, she is babbling, [she is] smiling, etc.

Mother is working with early intervention services, which she 

says are beneficial. Mother is making attempts to feed [A.M.P.]. 

According to [M]other, [A.M.P.] still rejects the bottle and food. 

The current [pediatrician] is Dr. Catherine Udekwu. She is not 

recommending that [A.M.P.] be hospitalized at this time, 

because despite the weight loss, [A.M.P.] seems to be 

developmentally on target. She will do regular weight checks to 
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monitor the situation. She will also encourage [M]other to have 

[A.M.P.] immunized.

Trial Court Order, 9/30/16, at 1-2 (certain paragraph breaks, paragraph 

numbers, and quotation marks omitted). 

In July 2016, CYF filed a petition for dependency. A hearing was held 

in September 2016, following which, the court dismissed CYF’s dependency 

petition. This timely appeal followed, along with a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial 

court issued a responsive opinion.

Appellant raises the following issues for review:

A. Whether the [t]rial [c]ourt erred as a matter of law in 

dismissing Allegheny County Office of Children, Youth and 

Families’ dependency petition pursuant to Juvenile Act, 42 

Pa.C.S. §6302(1), by applying the incorrect legal standard 

after the agency proved by clear and convincing evidence that 

A.M.P. was without proper parental care or control, or care or 

control necessary for her physical health?

B. Whether the [t]rial [c]ourt abused its discretion in dismissing 

Allegheny County Office of Children, Youth and Families’ 

dependency petition pursuant to the Juvenile Act 42 Pa.C.S. 

§6302(1), after the agency proved by clear and convincing 

evidence that A.M.P. was without proper care or control, or 

care or control necessary for her physical health?

Appellant’s Brief at 4.

Appellant first asserts that the trial court applied the incorrect 

standard of review. We are constrained to find this issue waived as 

Appellant failed to raise it in their 1925(b) statement. See Commonwealth 

v. Lord, 719 A.2d 306, 309 (Pa. 1998)). (“[I]n order to preserve their 
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claims for appellate review, [a]ppellants must comply whenever the trial 

court orders them to file a Statement of Maters Complained of on Appeal 

pursuant to Rule 1925. Any issues not raised in a Pa.R.A.P.(b) statement 

will be deemed waived.”)

Next, Appellant challenges the trial court’s dismissal of CYF’s 

dependency petition. According to Appellant, the court abused its discretion 

by disregarding evidence that parents’ actions put A.M.P.’s health, safety, 

and welfare at risk. Appellant’s Brief at 22-23.

Our Supreme Court set forth 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 M.B., 101 A3d 124, 126-127 (Pa. Super. 2014).

Section 6302 of the Juvenile Act defines a “dependent child” as a child 

who:

is without proper parental care or control, subsistence, 

education as required by law or 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, including evidence of 

the parent’s, guardian’s or other custodian’s use of alcohol 

or a controlled substance that places the health, safety or 

welfare of the child at risk[.]
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42 Pa.C.S.A. § 6302(1).

A child will only be declared dependent when he or she is presently 

without proper parental care and when such care is not immediately 

available. In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013); 42 Pa.C.S. §§ 

6301, 6302. Furthermore, “[t]his Court has defined ‘proper parental care’ as 

that care which (1) is geared to the particularized needs of the child and (2) 

at a minimum, is likely to prevent serious injury to the child.” In re A.B, 63 

A.3d at 349 (citation omitted).

It is evident from the record that the parents are willing to provide 

proper care for their child. Mother was active in A.M.P.’s treatment at 

Children’s Hospital and followed her doctor’s recommendations. Notes of 

Testimony (N.T.), 9/30/16 at 45-46. Mother complied with treatment and 

recommendations at the Children’s Institute. Id. at 5. Furthermore, Mother 

expressed a willingness to hospitalize A.M.P. should it become medically 

necessary. 

Since A.M.P.’s discharge from the hospital, parents continue to provide 

proper care. A.M.P. is currently meeting all of her developmental 

milestones. Id. at 110-111, 176-177. A.M.P. receives physical therapy, 

occupational therapy, and visits a nutritionist. Id. at 148-149. She is also 

seen regularly by a gastroenterologist, dermatologist, and an allergist, and 

has an active plan with her primary care physician. Id. at 45, 108-109, 

110. It is unclear what additional services or interventions Mother could 

provide. While it is true that the child has lost weight since her hospital 
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discharge, despite these treatments, there is not clear evidence that parents’ 

actions have contributed to or caused this weight loss.

Finally, while it is concerning that A.M.P. does not have all of her 

immunizations, we are unaware of a relevant, legal obligation with which 

parents currently must conform. Cf. 28 Pa. Code § 23 (requiring all public, 

private, parochial, or nonpublic school children to receive immunizations 

prior to school attendance, and providing two exemptions to the 

immunization requirement). Furthermore, Mother testified that she is not 

opposed to the child receiving her immunizations, but she wishes first to 

determine the underlying cause of A.M.P.’s medical issues. N.T. at 124. 

Based on this evidence, we conclude that the court’s findings are 

supported by the record, and we agree that CYF failed to establish by clear 

and convincing evidence that A.M.P. should be declared dependent. 

Accordingly, we discern no abuse of the court’s discretion.

Order affirmed.

Judge Solano joins the memorandum and files a Concurring 

Statement.

Judge Olson files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2017