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decided: March 25, 1987.


Appeal from the Order of the Department of Public Welfare, in case of Appeal of: Rose Conklin, File No. 20-84-25.


Jeffrey L. Greenwald, with him, David A. Scholl, for petitioner.

Ruth O'Brien, Assistant Counsel, for respondent.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Senior Judge Kalish concurs in the result only.

Author: Barry

[ 105 Pa. Commw. Page 85]

This appeal results from an order of the Pennsylvania Department of Public Welfare (DPW) which adopted in its entirety the recommendation of a hearing officer that the appeal of the petitioner, Rose Conklin, should be dismissed. Petitioner had appealed the establishment of the placement "goal" of the family service plan established by the Children and Youth Services Division, Northampton County (CYSD), which plan governed her three children's foster care placement arrangement.

The issue in the present case is purely one of law and the facts to the extent relevant are not in dispute. Because of apparent family instability, Petitioner's three minor children were placed into foster care under the jurisdiction of CYSD. Pursuant to DPW regulations,*fn1 CYSD established a family service plan and produced placement review reports every six months, see 55 Pa. Code § 3130.71, detailing, among other things, (1) the basis of need for continued placement and compliance with the service plan; (2) the efforts taken by the agency to correct the unstable family condition; (3) the "placement goal" for the children; (4) the actions taken

[ 105 Pa. Commw. Page 86]

    by the parents to achieve the placement goal; and (5) the services to be provided on behalf of the parents to achieve the placement goal. In the placement review issued on June 6, 1984, the caseworker assigned to petitioner and her children indicated a placement goal of adoption, apparently for all three children.

That June 6, 1984 review was appealed by petitioner to the DPW Office of Hearings and Appeals, ostensibly under 55 Pa. Code § 3130.62 ("Parent Appeals and fair hearings."). Petitioner indicated in the appeal that she disputed the placement goal of adoption. In response, CYSD asserted that jurisdiction over the issue was in the Northampton County Court of Common Pleas.

The hearing examiner thereafter recommended dismissal of the appeal, "as no right of appeal of the goal of a family service plan exists." That view was adopted by the Office of Hearings and Appeals (OHA), which likewise held that the goal of a family service plan could not be appealed, citing section 3130.62 in support. That section, OHA reasoned, specifically enumerated the aspects of the plan which were appealable, and the placement goal was not among them. In contrast, OHA observed, the regulations listed only actions concerning the components of the plan, viz., the services to be provided in connection with the goal, as appealable. Petitioner's request for reconsideration from this adverse ruling was thereafter denied, and the present petition for review was then initiated.*fn2

[ 105 Pa. Commw. Page 87]

Our scope of review in the present case is limited to a determination of whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether any constitutional rights have been violated. See Eye & Ear Hospital v. Department of Public Welfare, 100 Pa. Commonwealth Ct. 363, 368, 514 A.2d 976, 978 (1986). Petitioner continues to assert that establishment of the "placement goal" was an appealable determination and hence that DPW erred in dismissing her appeal. We disagree and, thus, affirm.

OHA concluded that no appeal would lie from establishment of a goal based upon the following regulation, which does not provide in terms for such an appeal:

§ 3130.62. Parent appeals and fair hearings.

(a) The county agency shall provide to parents, along with a copy of the [family service] plan, a written notice of their right to appeal to the Department's Office of Hearings and Appeals, any determination which:

(1) results in a denial, reduction or termination of service;

(2) results in a determination that the parent or child must participate in a service;

(3) fails to take into account the parents' or child's choice of service; or

(4) fails to act upon a request for service with reasonable promptness.

[ 105 Pa. Commw. Page 88]

(g) In all appeal proceedings, the county agency shall have the burden of proving by clear and convincing evidence that the challenged term is necessary to achieve the goals of the service plan.

55 Pa. Code § 3130.62. Considering these two subsections of the regulation, OHA concluded as follows:

A clear reading of subsection (g) indicates that a distinguishing is made between the terms (i.e., the services) of the family service plan from its goals. The County agency is required to prove the terms are necessary to achieve the ultimate objective of the plan.

The components of the family plan are proper matters for hearing before [OHA]; however, the goals of the service plan are not.

OHA Decision at 2.

1. The Jurisdiction Issue

On appeal, DPW defends and refines the foregoing conclusion. Its argument, distilled, is that while DPW plays the role of regulator of county children and youth agencies, and is the conduit for disbursing funds to those agencies,*fn3 it does not have exclusive jurisdiction over all matters which these agencies encounter. This reality, DPW asserts, is what lies behind its conclusion that the goal of a service plan is not appealable to DPW. Indeed, the agency maintains that the very reason a goal is not enumerated as appealable is that disputes over such determinations -- the establishment of placement goals -- are and always have been presumed to be within the jurisdiction of the juvenile divisions of county common pleas courts.

[ 105 Pa. Commw. Page 89]

This argument is persuasive and is essentially dispositive, as a threshold matter, of this case. While a caseworker at CYSD (or any other such youth agency) may make an initial recommendation regarding the ultimate disposition of a foster child, that recommendation is clearly not a final order or adjudication and is always subject to the approval of the court. The Juvenile Act*fn4 we note, empowers the juvenile division of the court to order the transfer of legal custody of a dependent child to a foster home or public welfare facility. 42 Pa. C.S. § 6351(a). That same act, notably, has as a pervasive aspiration the provision of "means by [which] the parties are assured a fair hearing and [by which] their constitutional and other legal rights are recognized and enforced." Id. § 6301(b)(4). It is in this forum, then, that the agency's placement goal may be challenged. This has been passively recognized by the Superior Court, see In re Adoption of Chrystal D.R., 331 Pa. Superior Ct. 501, 512, 480 A.2d 1146, 1152 (1984) (dicta), and is, indeed, taken for granted by the regulations governing DPW's child-placement responsibilities. See 55 Pa. Code § 3130.72:

(a) For each child in placement . . . for whom the county has been granted temporary legal custody under the Juvenile Act . . . the county agency shall petition the court to conduct a dispositional review hearing at the same time the county agency petitions the court to conduct a placement review. . . .

(b) A petition for dispositional review must request the court to determine whether the child should be:

(1) Returned to the parents;

[ 105 Pa. Commw. Page 90]

(2) Continued in foster care for a specified period;

(3) Placed for adoption ; or

(4) Because of the child's special needs or circumstances, continued in foster care on a permanent or long-term basis.

Id. (emphasis added).*fn5

Because it is within the realm of the juvenile court to resolve the propriety of a dispositional/placement goal established by a county youth agency, we conclude that DPW properly dismissed the appeal from the simple establishment of that goal by the agency. DPW has the power to direct that goals be established, but the court is the forum in which those goals may be disputed and are ultimately adjudged.*fn6

[ 105 Pa. Commw. Page 912]

. Import of the Regulation

Although we conclude that the common pleas court has jurisdiction over disputes with respect to placement goals, an issue as to the import of the appeal regulation

[ 105 Pa. Commw. Page 92]

    remains. The entire premise of petitioner's appeal is, indeed, that it is inconsistent for DPW to exercise review powers over the components of the service plan yet to deny the existence of such power as to the goal itself. We believe that the foregoing discussion resolves the issue -- review of such goals is the task of the juvenile court, and it is that forum in which the parent may appear and challenge the goal.

A more complete answer to petitioner's regulation-based argument, however, rests in acknowledgment of DPW's at once considerable yet ultimately non-comprehensive role in the lives of county youth agencies. As is clear from the discussion in the first part of this opinion, county juvenile courts have broad powers, stemming directly from statute, over the handling and final disposition of children in foster care. This has been the traditional role of such courts. As the state agency charged with the disbursal of federal funds to youth agencies, however, it has develved upon DPW to enact regulations ensuring that certain administrative responsibilities assigned to the agencies -- as prerequisites to receipt of federal funds -- are satisfied. It was this federal action which led DPW to establish the regimen of regulation-based goals, service plans and placement reviews discussed above.*fn7

[ 105 Pa. Commw. Page 93]

Under the involved regulations, which establish a comprehensive case planning and case management scheme, the agency must, among other things, establish the placement goal for the dependent child, 55 Pa. Code § 3130.67(5); establish a "family service plan" detailing "the services to be provided to achieve the objectives of the plan," id., § 3130.61(4); conduct six-month reviews of family service plans, id., § 3130.63; and petition the juvenile court, at six-month intervals, for "placement review," which entails, chiefly, consideration by the court of whether continued placement is necessary and whether the service plan has met with compliance. Id. § 3130.71. In addition, as discussed earlier, the agency must also petition the court for review of the proposed goal. Id. § 3130.72. This scheme is mandated, as suggested above, by the federal government as a prerequisite for the commonwealth's receipt of federal funds for foster care, see Lynch v. King, 550 F. Supp. 325, 343 (D. Mass. 1982), and reflects a congressional concern that states were not effectively monitoring the status of children in foster care. See id. at 345 ("Congress recognized that the existence of unmanageable caseloads was responsible for many of the problems for which the 1980 Act is an intended cure."). Compare In re Adoption of Chrystal D.R., 331 Pa. Super. 501, 513, 480 A.2d 1146, 1153 (1984) ("The purposes of these periodic reviews is to reduce the number of children in placement . . . and 'ensure for each child . . . a permanent, legally assured family which protects the child from abuse or neglect'[.]").

[ 105 Pa. Commw. Page 94]

An important facet of this remedial scheme is the provision of services to the family in connection with the ultimate placement goal. Federal regulations, indeed, require that a hearing be held whenever a parent challenges the level or manner of administration of such services.*fn8 In this realm, we note, there is no statutory preemption of DPW review by the juvenile court when such services are affected by youth agency decision-making. See 42 Pa. C.S. §§ 6301-6365. We thus find it entirely appropriate that the "parent appeals and fair hearings" regulation provides for appeals to DPW from decisions concerning services, with juvenile court left in its traditional role as the forum for review and adjudication of the goal itself. This scheme satisfies the strictures of the federal funds-conditioning, respects the statutory role of the common pleas court, and provides a forum in which disputes over placement goals may be resolved.

3. Conclusion

The foregoing, we believe, fully explains the limited character of the appeals regulation and refutes the premise of petitioner's appeal. And, because we have also concluded as a threshold matter that juvenile court possesses jurisdiction over disputes concerning placement goals, OHA was correct in construing the regulation narrowly and dismissing petitioner's appeal.



Now, March 25, 1987, the Order of the Department of Public Welfare dismissing the Appeal of Petitioner, Rose Conklin, is hereby affirmed.

Senior Judge Kalish concurs in the result only.



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