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TAMEKA M. (10/30/87)

filed: October 30, 1987.

IN RE TAMEKA M., A MINOR. APPEAL OF CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY


Appeal from the Order of the Court of Common Pleas, Family Division, Juvenile Section, of Allegheny County, No. 1982-82.

COUNSEL

James A. Esler, Pittsburgh, for appellant.

Cirillo, President Judge, and Rowley, Olszewski, Del Sole, Montemuro, Beck, Tamilia, Kelly and Popovich, JJ. Tamilia, J., files a concurring and dissenting opinion in which Del Sole and Popovich, JJ., join.

Author: Rowley

[ 368 Pa. Super. Page 526]

Children and Youth Services of Allegheny County (CYS) appeals from an Order of the juvenile court directing CYS

[ 368 Pa. Super. Page 527]

    to reimburse foster parents for tuition paid by them to enroll Tameka M. in a Montessori preschool program, and to pay the cost of her continuing education in that program. The case was certified for en banc review to consider the following issues of first impression raised in a dependency proceeding under the Juvenile Act, 42 Pa.C.S. §§ 6301-6365: 1) is the order directing CYS to fund the foster parents' placement of a dependent child in preschool final and appealable; and 2) does a juvenile court judge have authority to order CYS to a) fund the child's placement in a non-therapeutic preschool not licensed by the Pennsylvania Department of Public Welfare (DPW), and b) fund the child's placement in a preschool for which funds are not reimbursable from DPW. To place the issues in proper perspective, we must first consider the facts and procedure that preceded this appeal.

Tameka, born January 21, 1981, was adjudicated dependent by the juvenile court and placed under supervision of CYS in March of 1983. Tameka was placed in the custody of a friend of Tameka's natural mother. The placement proved problematic and within two weeks Tameka was placed with a foster family who had earlier received Tameka's younger brother, Brian.

During this time period Tameka's natural mother was directed to enroll in a program designed to assess her parenting skills and to facilitate the return of Tameka and Brian to her. She has, however, failed to follow through with the program and is no longer involved with her children. The permanent plan for both children is adoption. Tameka's natural father has never appeared in any of the proceedings before the juvenile court.

A review of Tameka's placement with the foster parents was held on August 31, 1984. During the hearing, the issue of payment for Tameka's attendance at preschool was considered. Testimony presented at the hearing revealed that in August of 1983 Tameka had been referred to the Parent-Child Guidance Center (Guidance Center) because of self-abusive behavior such as picking at her arms, nose and

[ 368 Pa. Super. Page 528]

    upper lip until they bled. After an evaluation, the Guidance Center recommended that she be placed in the South Hills Therapeutic Preschool where she was enrolled in September of 1983. The South Hills preschool was funded through Mental Health/Mental Retardation and involved no cost or expense to CYS. In December of 1983, the foster mother removed Tameka from the South Hills preschool because, according to her, Tameka's behavior had deteriorated; for example, her screaming and tantrums had escalated. The foster mother also believed that Tameka was spending too much time at the school, causing her sleeping pattern to be interrupted. The foster parents then enrolled Tameka in a Montessori preschool in an effort to provide a more structured program for the child. The foster mother testified that Tameka's behavior improved after the transfer. The cost of the Montessori program was originally $70 per month, but had been increased to $80 per month at the time of the hearing. The foster parents had been paying the tuition for the Montessori school. At the review hearing, the foster parents sought reimbursement from CYS for Tameka's attendance at Montessori. Because CYS would receive no reimbursement from DPW for Tameka's attendance at Montessori, the agency opposed paying her tuition there.

After reviewing the testimony of the caseworker and the foster mother, and a psychological report based on an evaluation of Tameka conducted four months after she enrolled at Montessori, the juvenile court ordered CYS to reimburse the foster parents for Tameka's attendance at Montessori. Although the court acknowledged the financial limitations of CYS, it found that Tameka's masochistic behavior demonstrated that she had both special problems and special needs. The court noted that her behavior had deteriorated in the South Hills program, but had improved in the Montessori one and therefore the Montessori program was best suited for her special needs. The court concluded that the highly structured program at Montessori was therapeutic as well as educational and that enrollment

[ 368 Pa. Super. Page 529]

    there was in Tameka's best interest. This direct appeal followed.

I.

The first issue to be resolved is whether the order is appealable. Although none of the parties have raised the issue, it is incumbent upon us to address the matter sua sponte. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Metropolitan Life Insurance Co. v. Bodge, 352 Pa. Super. 191, 507 A.2d 837 (1986). When the case was certified for en banc review, the parties were directed to address the appealability issue. Both parties argue that the order is appealable. Although CYS did not file a supplemental brief on the issue, it urged us, at oral argument, to so find. The child advocate assumes that the order is interlocutory, but argues that a prompt appeal best serves the interest of justice in a juvenile case and that waiting for a final order could preclude appellate review due to the length of time which may elapse before a final disposition is reached in the trial court in a dependency case.

To resolve the appealability question we first consider whether the order is a final one. Tameka was found to be dependent as that term is defined in the Act and a dispositional order was entered. An appeal cannot be taken from a dependency determination; instead, an aggrieved party must wait until an order of disposition is entered. In Interest of K.B., 276 Pa. Super. 380, 419 A.2d 508 (1980) (by Spaeth, J., with Hoffman, J. concurring in the result, and Van der Voort, J. dissenting.); In Interest of C.A.M., 264 Pa. Super. 300, 399 A.2d 786 (1979). In the present case, no appeal was taken from the dispositional order. Therefore, the case will remain active until one of the following events occurs: 1) Tameka is returned to her natural parent(s); 2) parental rights are terminated and Tameka is adopted, see In re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980) (once court terminated parental rights under the Adoption Act, issue of custody under Juvenile Act became moot and it was unnecessary to make a finding whether the minor was dependent),

[ 368 Pa. Super. Page 530]

    or 3) Tameka attains majority. The present plan for Tameka is adoption. Viewed in this context, the order directing CYS to pay for Tameka's placement and continued enrollment in the preschool program at Montessori is not a final order, but is interlocutory. "[A]n order is final where it puts a litigant out of court or otherwise terminates the litigation by precluding a party from presenting the merits of a claim or defense to the trial court." Fidelity Bank v. Duden, 361 Pa. Super. 124, 128, 521 A.2d 958, 960 (1987) (citations omitted). The present order achieves none of these results.

In addition to the fact that the order is interlocutory because the parties are not out of court and there has been no final disposition, it has been suggested that the appeal is premature because CYS has not been adjudged to be in contempt of the order and no sanctions have been imposed. Two cases are cited in support of this proposition: Hester v. Bagnato, 292 Pa. Super. 322, 437 A.2d 66 (1981) and McManus v. Chubb Group of Insurance Companies, 342 Pa. Super. 405, 493 A.2d 84 (1985). In Hester, the Appellees requested that Appellant be held in contempt of an order enforcing a settlement agreement. A hearing was held on the petition for contempt and Appellant appeared with counsel at the contempt hearing. The trial court entered an order finding Appellant in contempt for refusing to obey a prior order enforcing the settlement agreement. An appeal was taken and this Court quashed the appeal, holding that until sanctions are imposed pursuant to an order of contempt, the order holding a party in contempt is interlocutory. In McManus, plaintiff appealed from an order holding her in contempt and assessing costs for her failure to abide by prior orders of court directing her to comply with discovery. This Court quashed the appeal, finding first that the order appealed from did not dismiss the underlying assumpsit action and that sanctions had not been imposed on the finding of contempt. Plaintiff, in that case, also argued that the assessment of costs, entered pursuant to Pa.R.C.P. 4019(g), was a final order. Applying the exception

[ 368 Pa. Super. Page 531]

    to the final judgment rule set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), this Court rejected plaintiff's claim, finding that the right to appellate review would not be lost if plaintiff waited until final judgment in the underlying assumpsit action.

After having carefully considered the applicability of the two cases cited to the present one, we conclude that they do not compel a finding that the entry of sanctions is a prerequisite to appealing from the order in question. In both Hester and McManus a party initiated the contempt proceedings when the contemnor failed to comply with an order of court directing them to perform an act: i.e., obey a prior order of court. Here, CYS has chosen to directly challenge the payment of school funds from the start, even before an order of contempt was sought or entered or a hearing was held on the matter. The underlying order was entered and a direct appeal was then undertaken by CYS. If this Court sua sponte were to require the initiation of contempt proceedings and the imposition of sanctions under the guise of considering the appealability issue, we would be encouraging foot dragging. The present order is complete in itself and orders CYS to pay a sum of money. Requiring contempt proceedings would add nothing to the record. Moreover, the current posture of the case reveals that if a finding of contempt and sanctions were required to make the present order appealable, CYS would have to first refuse to comply with the present order; appellee would have to initiate contempt proceedings; the trial court would have to hold a hearing and adjudge CYS in contempt of the order; and then sanctions could be imposed. Matter of Elemar, Inc., 44 Pa. Commw. 515, 520, 404 A.2d 734, 737 (1979) ("Pennsylvania Supreme Court has said that the process necessary to hold one in civil contempt requires several steps -- a rule to show cause, answer and hearing, rule absolute, hearing on the contempt citation, and adjudication of contempt."). Thus, we conclude that the absence of the entry of sanctions does not preclude a finding that the present order is appealable. However, this leaves us

[ 368 Pa. Super. Page 532]

    with the question of whether the present order is appealable even though it is interlocutory.

We find that the present order is appealable under the exception to the final judgment rule set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), adopted in Pennsylvania in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975), and recently reaffirmed in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985):

In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 536.

Fried, 509 Pa. at 94, 501 A.2d at 214 [emphasis in original; quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978)]. The Cohen test does not determine finality; instead, it creates an exception to the rule allowing appeals solely from final orders and applies only to orders which are interlocutory. Fidelity Bank v. Duden, supra.

As to the first requirement of Cohen, a review of the Juvenile Act reveals the following relevant purposes which the legislature sought to achieve by implementing the Act:

(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.

(3) To achieve the foregoing purpose[] in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.

[ 368 Pa. Super. Page 533]

(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

42 Pa.C.S. § 6301(b). The Act provides for a bipartite proceeding consisting of 1) an adjudication of dependency, § 6341, and 2) a disposition of the dependent child, § 6351. Helsel v. Blair County Children & Youth Services, 359 Pa. Super. 487, 519 A.2d 456 (1986). Thus, the main cause of action consists of a dependency determination and disposition. The primacy of the dispositional order is further reflected by the fact that it constitutes a final, appealable order. Here, the order of disposition was entered in March of 1983 and it was not until August of 1984 that the present order was entered. We find that the order directing payment of the preschool funds is clearly separable from and collateral to the order of disposition; therefore, it satisfies the first part of the Cohen test.

The second requirement of Cohen is that the right involved is too important to be denied review. The purpose of the order appealed from is to assure the continued attendance of Tameka in what the trial court perceives to be a beneficial and necessary preschool program for a ward of the court. The important right at stake is Tameka's proper mental development and receipt of the treatment necessary to insure that development, a matter which is one of the concerns addressed in the purpose section of the Juvenile Act. See 42 Pa.C.S. § 6301(b)(1). The failure to provide Tameka with proper treatment currently may result in a lasting problem for her. Thus, the right involved is too important to be denied review since Tameka should be provided now with the care necessary for her wholesome mental development.

The final requirement of Cohen is that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. In Fried v. Fried, supra, our Supreme Court concluded that an order awarding interim counsel fees and expenses and payment of master's fees

[ 368 Pa. Super. Page 534]

    and stenographic costs in a divorce action subject to the Divorce Code of 1980 did not meet the third requirement of Cohen. If it were determined that the trial court erred in making the award, the Court noted that the amounts paid under the interim order could be recovered by appropriate "adjustments in the final settlement via the equitable division of marital property, permanent alimony, and/or the final award of attorney's fees and costs." Id. 509 Pa. at 96, 501 A.2d at 215 (footnote omitted). Compare Beasley v. Beasley, 348 Pa. Super. 124, 501 A.2d 679 (1985) (order denying petition to bifurcate economic claims from cause of action for divorce not appealable under Cohen since right involved was not too important to be denied review and would not be irreparably lost) with Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374 (1986) (order directing that hearings pertaining to equitable distribution of marital property be open to public is immediately appealable under Cohen due to fact that any information disclosed during hearings is not subject to recall and it would be impossible to recompense party for alleged harm resulting from disclosure of marital and financial circumstances).

In the present case, the right will be irreparably lost if review is postponed. To carry out the purposes of the Juvenile Act it is important to afford immediate treatment to a child subject to its terms. Although divorce proceedings, such as the one confronted in Fried, may last for many years, a dependency proceeding is unique since it presents a very real possibility that the case may continue until Tameka reaches majority. Even more important is the principle that a developing child be provided with the appropriate treatment immediately, otherwise he or she may suffer permanent damage. Unlike the parties in Fried, there is no amount of money that could repair such a tragedy. Although the foster parents have paid for Tameka's attendance at the Montessori school, there is no assurance that they can or will continue to do so. On the other hand, if the trial court was without authority to enter the order, as is argued by CYS, it is unlikely that CYS would be able to seek return of the money paid out pursuant to the

[ 368 Pa. Super. Page 535]

    court order if review is delayed. There will be no fund available at the conclusion of a juvenile proceeding from which adjustments can be made if the order is reversed. Therefore, we hold that the order is appealable under Cohen.

II.

Having determined that the order appealed from is properly before us, we now turn to a consideration of the merits of the two issues CYS has raised on appeal. CYS argues that a juvenile court judge does not have the authority to order it to fund a child's placement and enrollment in a non-therapeutic, Montessori preschool because (1) the preschool is not licensed by DPW, and (2) CYS will not be reimbursed by DPW for the placement.*fn1 Set against a backdrop of limited funding, CYS submits that because funding is not available to enroll dependent children in educational preschool programs, as opposed to therapeutic preschool programs, the court does not have the authority to order CYS to fund a preschool for all of its children. Instead, CYS argues, in unique situations such as Tameka's, special schools with Mental Health/Mental Retardation funding should be utilized. Alternatively, CYS submits that entry of the order constituted an abuse of discretion. Since it would be unnecessary to address the abuse of discretion claim if the trial court was without authority to enter the order initially, we first examine the claim concerning the court's authority to act.

The juvenile court found that the Act gives broad discretion to a judge in determining the appropriate disposition for a dependent child, including the authority to impose whatever ...


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