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RONALD M. MARTZ AND STELLA L. MARTZ v. COMMONWEALTH PENNSYLVANIA (01/27/88)

decided: January 27, 1988.

RONALD M. MARTZ AND STELLA L. MARTZ, HIS WIFE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, ADAMS COUNTY CHILD AND YOUTH SERVICES, RESPONDENT



Appeal from the Order of the Department of Public Welfare in the case of Mr. & Mrs. Ronald Martz, No. 30-85-003.

COUNSEL

John James Mooney, III, Gates & Mooney, for petitioners.

Chester G. Schultz, Bulleit, Schultz & Thrasher, for respondent.

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

Author: Kalish

[ 113 Pa. Commw. Page 111]

This is a petition for review of an order of the Director of Hearings and Appeals of the Department of Public Welfare (DPW) which upheld the action of the Adams County Child and Youth Services in disapproving the petitioners' home as a foster family home. We affirm.

The petitioners, Ronald M. Martz and Stella L. Martz, have been foster care parents since April 1984. On January 30, 1985, three children were placed in the petitioners' home. On July 31, 1985, an anonymous call was made to the child abuse hot line indicating that there was a problem with the petitioners' foster home. DPW conducted an investigation and upon review of the findings of this investigation, the Adams County Child and Youth Services decided to remove the children from the petitioners' home and remove the petitioners from the foster care program. The petitioners were given notice of their right to appeal. A hearing officer of the Child and Youth Services upheld the appeal. However, the Office of Hearings and Appeals of the DPW reversed the hearing officer and disapproved the petitioners' home as a foster home.

Our scope of review of an administrative agency decision is limited by section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704, to determining whether constitutional rights have been violated, an error of law was committed, or whether there is substantial evidence

[ 113 Pa. Commw. Page 112]

    in the record to support findings of fact. Werner v. Workmen's Compensation Appeal Board (Bernardi Bros., Inc.), 102 Pa. Commonwealth Ct. 463, 518 A.2d 892 (1986).

The petitioners contend that improper procedure was used in removing the children from their home since 55 Pa. Code § 3700.73(e) provides that upon appeal a child must remain in the foster home pending a decision on the appeal.

The petitioners misconstrue DPW's regulations. In 55 Pa. Code § 3700.73(a)(5), pertaining to foster family care, it is provided that an appeal will not be permitted for the relocation of a child where "an investigation of a report of alleged child abuse indicates the need for protective custody removal to protect the child from further serious physical or mental injury, sexual abuse or serious physical neglect, as defined by Chapter 3490 (relating to child protective services -- child abuse)." The issue here was the need for protective custody. It is only where the foster parent has a right to appeal the relocation of the child, that the child must remain in the foster home pending a decision on appeal. Since no such right existed in the present circumstances, 55 Pa. Code § 3700.73(e) does not apply.

Petitioners contend that under the regulations dealing with appeals from disapproval of a foster home, the evidence did not ...


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