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ROSE CONKLIN v. COMMONWEALTH PENNSYLVANIA (03/25/87)

decided: March 25, 1987.

ROSE CONKLIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



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

COUNSEL

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 ...


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