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S.A.D. (01/20/89)

filed: January 20, 1989.

IN THE INTEREST OF S.A.D., A MINOR, APPEAL OF K.D., A MINOR, APPELLANT, MONROE COUNTY CHILDREN & YOUTH


Appeal from the Order entered February 17, 1988, Court of Common Pleas, Monroe County, Civil Division at No. 2936 of 1988.

COUNSEL

Janet J. Siracus, Assistant Public Defender, Stroudsburg, for appellant.

Mark L. Newman, Assistant Public Defender, Stroudsburg, for appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Johnson

[ 382 Pa. Super. Page 167]

In this dependency action, we consider for the first time the obligation of the Commonwealth to promote family stability and to preserve the family unit pursuant to Public Law 96-272, June 17, 1980, the Adoption Assistance and Child Welfare Act of 1980. Under this Act the state is entitled to matching funds when it complies with federal requirements to make reasonable efforts to maintain the family unit when it temporarily or permanently removes the child from the home. In our Commonwealth, the services required by the federal act are implemented through the Department of Public Welfare and the County Children and Youth Services. In the present case, Monroe County Children and Youth Services (CYS) had a greater concern with the protection of their funding than the implementation of

[ 382 Pa. Super. Page 168]

    their responsibility to stabilize and protect the family unit of this young mother and her child. With regard to participation in the federal program, we have stated: Paramount to compliance is the requirement of due process and an appropriate judicial determination that removal of a child from his home was required. 55 Pa.Code § 3130.71(a). Prior to removal is the requirement that the agency make reasonable effort to prevent removal. 62 P.S. 701 et seq.; 55 Pa.Code §§ 3130.11, 3130.13, 3130.35-.42. The federal and state law requires periodic court monitoring which is the role of the Juvenile Court, 42 Pa.C.S. § 6351, 55 Pa.Code § 3130.71, and it also involves case plans for services for the child, parents and foster parents (55 Pa.Code § 3130.67) to: (1) improve conditions in the home (§ 3130.67(6)(7)(8); and (2) facilitate the child's return home or plan for permanent placement (§ 3130.61-67).

Ultimately, the goal is to rehabilitate the family, reunite the child with his family or, after reasonable efforts over an appropriate period of time have failed, to terminate parental rights and free the child for adoption pursuant to the Adoption Act of 1980, Subchapter B, Involuntary Termination, 23 Pa.C.S. § 2511(a).

Fallaro v. Yeager, 364 Pa. Super. 408, 422, 528 A.2d 222, 229 (1987).

These requirements are not mere formalities:

[I]t is clearly apparent that with the enormous social and legal implications involved in a finding of dependency, this can only be accomplished through the proceedings in Juvenile Court pursuant to a dependency petition, which calls into play the full panoply of services, safeguards and goals provided by federal and state laws and resources.

Fallaro v. Yeager, 364 Pa. Super. at 422, 528 A.2d at 229 (1987).

Here, finding that the agency has neither made reasonable efforts to keep this family together nor presented evidence probative of dependency, we reverse and remand.

[ 382 Pa. Super. Page 169]

The facts of this case may be stated as follows: On January 21, 1988, K.D., an eighteen year old unwed mother, went to the office of the Monroe County Children and Youth Services in Stroudsburg, Pennsylvania and requested assistance. Mother and her fourteen month old daughter, S., born November 25, 1986, had no money and no place to stay. Mother was advised that her only alternative was to "voluntarily" place her child in the custody of CYS until she could find a place to stay. She was told by the agency to "get herself together and find a place [to stay] and get some employment so she could have her daughter back." (N.T. 2/16/88 at 10.)

The regulations promulgated under 55 Pa.Code § 3130.65 require that a voluntary agreement may only be effective for 30 days and must contain a statement that the parent has a right to be represented by legal counsel, has a right to refuse to place the child and must contain a statement that the parent has a right to visit the child, to be consulted with respect to all medical or educational decisions and that the parent has the right to the immediate return of the child upon request unless the court orders the legal custody of the child to be transferred to the agency. As CYS has neither attached a copy of the voluntary agreement, stated why it was not accessible, nor set forth the provisions, we need not consider the voluntary agreement. Pa.R.C.P. 1019(h); see Judges v. County of Washington, 120 Pa. Commw. 283, 289, 548 A.2d 1306, 1309 (1988). In view of our disposition, we do not address the failure of CYS to attach a copy of the "voluntary" agreement to the dependency petition when the surrender of a fundamental constitutional right is at issue.

In early February, Mother requested the return of her child. This request was denied by the agency. On February 16, 1988, the date of the hearing, Mother had been continuously requesting the return of her child for two weeks, was employed, earning $3.60 per hour, and was residing with the family of a friend. ...


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