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CHILD CARE SERVICE DELAWARE COUNTY INSTITUTION DISTRICT v. COMMONWEALTH PENNSYLVANIA (04/25/78)

decided: April 25, 1978.

CHILD CARE SERVICE OF THE DELAWARE COUNTY INSTITUTION DISTRICT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, ELLEN KULISZEWSKI AND JOSEPH KULISZEWSKI, RESPONDENTS



Appeal from the Order of the Department of Public Welfare in case of In Re: Appeal of Mr. & Mrs. Joseph J. Kuliszewski, Foster Parents, into the proposed removal by Delaware County Child Care Service of Laura Cherry, dated October 21, 1976.

COUNSEL

Michael J. Ehling, Assistant County Solicitor, with him Joel S. Robbins, and Robbins and Katz, P.C., for petitioner.

Garland D. Cherry and Lynne M. Mountz, with them, Kassab, Cherry, Curran & Archbold ; and Robert J. Winchester, Assistant Attorney General, for respondents.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Crumlish, Jr. dissents.

Author: Blatt

[ 35 Pa. Commw. Page 82]

The Child Care Service of the Delaware County Institution District (Child Care) appeals here from

[ 35 Pa. Commw. Page 83]

    an order of the Pennsylvania Department of Public Welfare (DPW) which adopted a hearing officer's recommendation that Child Care be denied permission to remove a child from long-term foster care so that it could be placed for adoption.

The child, Laura Cherry, was born on September 8, 1975 and four days later was voluntarily placed by her natural parents in Child Care's custody. On that same day, Child Care placed her in the home of Joseph and Ellen Kuliszewski, in a short-term foster-home placement, pending implementation of a permanent placement. In March of 1976, the Kuliszewskis were informed by Child Care that Laura was to be removed from their home and placed in an adoptive home, and they requested an informal hearing with the agency pursuant to Section 4363B(1) of the DPW regulations*fn1 and asked that they be permitted to adopt Laura. The director of Child Care, after a hearing, determined that Laura should be removed as proposed, and the Kuliszewskis appealed this decision to the Secretary of Welfare. After conducting several hearings, a DPW hearing officer issued an adjudication and recommendation stating that Child Care had not met its burden to establish that the proposed relocation was the least detrimental long-term placement alternative for Laura. The DPW adopted the hearing officer's recommendation, and ordered that Laura remain in the home of the Kuliszewskis. This appeal followed.

Section 44 of the Administrative Agency Law,*fn2 71 P.S. ยง 1710.44, limits our scope of review here to a determination as to whether or not the findings of

[ 35 Pa. Commw. Page 84]

    fact necessary for the adjudication are supported by substantial evidence, whether or not an error of law was committed and whether or not constitutional rights were violated. Stoffan v. Department of Public Welfare, 31 Pa. Commonwealth Ct. 203, 375 A.2d 894 (1977). Child Care argues, inter alia, that the controlling DPW regulations are invalid, and alternatively that, if they are valid, they are not applicable in the circumstances of this case. After a careful review of the record, we conclude that the regulations do not apply in regard to proposed placements for adoption and that the adjudication of the DPW must therefore be reversed.

The regulations at issue*fn3 were promulgated in 1975 and amend the Title 4300 regulations applying to foster family care for children when such services are provided under public and voluntary social service auspices. They require that, when a child care agency determines that it would be appropriate and desirable to relocate a child in foster family care, the foster parents must be given notice of the intention to relocate the child and the opportunity for an informal hearing. At the hearing, the burden rests upon the agency to establish that the proposed relocation is the least detrimental long-term ...


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