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CHILDREN AND YOUTH SERVICES v. COMMONWEALTH PENNSYLVANIA (12/04/87)

decided: December 4, 1987.

CHILDREN AND YOUTH SERVICES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Appeal of: Bertha M. Turner, File No. 28-85-004.

COUNSEL

James A. Esler, Assistant County Solicitor, with him, James J. Dodaro, County Solicitor, for petitioner.

Jason W. Manne, Assistant Counsel, with him, Ruth O'Brien, for respondent.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 111 Pa. Commw. Page 460]

Allegheny County Children and Youth Services (Petitioner) appeals an order of Respondent Pennsylvania Department of Public Welfare (DPW), Office of Hearings and Appeals, sustaining B.T.'s appeal of Petitioner's decision disapproving her as foster parent for her niece. We affirm.

On May 1, 1985, the Court of Common Pleas of Allegheny County granted B.T. custody of her niece, L.T.,*fn1 and ordered that foster care payments be paid retroactively to the date of placement. Petitioner subsequently informed the court that pursuant to 55 Pa. Code § 3700.64 (assessment of foster parent capability), it did not approve of B.T. as a foster parent based on her problems with her own son, D.T.,*fn2 thereby refusing to make foster care payments.

B.T. appealed Petitioner's decision to deny her foster parent status and foster care payments to DPW, and a hearing was held before Attorney Examiner John A. Parse. On March 18, 1986, the Examiner recommended that B.T.'s appeal be sustained, concluding that she was not unfit to be a foster parent, considering that she had undergone training to improve her parenting skills. The Office of Hearings and Appeals adopted Examiner

[ 111 Pa. Commw. Page 461]

Parse's recommendation and clarified that B.T. is to receive foster care payment from Petitioner for L.T. retroactive to the date of placement by the court on May 1, 1985.

Petitioner now appeals to this Court, arguing that its determination with respect to B.T.'s foster parent status was reasonable and that DPW erred as a matter of law and acted arbitrarily in sustaining her appeal. We respectfully disagree.

The crux of Petitioner's argument on appeal is its claim that because DPW has delegated its authority to Petitioner, as an approved foster family care agency, to inspect and approve foster families, see 55 Pa. Code § 3700.61, DPW may only review Petitioner's approval determinations as an appellate body. Petitioner asserts that in so reviewing its determinations, DPW may not overturn a decision absent an error of law, or bad faith, capricious action or abuse of power on the part of Petitioner.*fn3

This contention completely ignores DPW's statutory duty to supervise "children's institutions" under Section 902(3) of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 902(3), which by definition includes Petitioner. Section 901, 62 P.S. § 901. See also In re Lowry, 317 Pa. Superior Ct. 304, 464 A.2d 333 (1983), rev'd on other grounds, 506 Pa. 121, 484 A.2d 383 (1984); Child Care Service v. Department of Public Welfare, 35 Pa. Commonwealth Ct. 81, 385 A.2d 593 (1978). Further, at the time of B.T.'s appeal, DPW regulations ...


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