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In re D.M.D.-C.

Superior Court of Pennsylvania

August 19, 2019

IN THE INTEREST OF: D.M.D.-C. APPEAL OF: ALLEGHENY COUNTY OFFICE OF CHILDREN YOUTH AND FAMILIES

          Appeal from the Order Entered November 14, 2018 In the Court of Common Pleas of Allegheny County Family Court at No(s): CP-02-DP-0001056-2015

          BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J. [*]

          OPINION

          NICHOLS, J.

         Appellant Allegheny County Office of Children, Youth, and Families (CYF) appeals from the order granting the motion filed by D.M.D.-C. (Child), born in November 2006, to have foster care payments paid to M.K., Child's biological father whose parental rights were previously terminated when Child was an infant. CYF argues that the trial court abused its discretion by ordering that M.K. receive foster care payments. We affirm.

         The factual and procedural background are undisputed.

On June 5, 2015, J.C., [the adoptive father of Child], filed a private dependency petition pursuant to 42 Pa.C.S.[] § 6334 alleging that Child had committed specific acts of habitual disobedience. The alleged acts of disobedience by Child included lying, manipulative conduct, threats, verbal aggression, sexual displays, and lack of remorse for his actions. [J.C.] alleged in the petition fear for his own safety and the safety of Child. [The trial court] appointed a guardian ad litem, and on August 24, 201[5], entered an order for emergency protective custody . . . .
Following an August 26, 2015 shelter care hearing pursuant to 42 Pa.C.S.[] § 6332, [the trial court] found [J.C.] unable to care for Child due to [J.C.] suffering a serious medical condition. Concluding that returning [Child] to the home [of J.C.] was not in [Child's] best interests and that to allow Child to remain in [J.C.'s] home would be contrary to [Child's] welfare, [the trial court] transferred legal custody of Child to [CYF], and physical custody of Child to a foster parent. The order referred the foster parent for foster care certification and directed that she be provided with emergency caregiver funds.
On December 2, 2015, [the trial court] adjudicated Child dependent pursuant to 42 Pa.C.S.[] § 6302. Following a permanency review hearing on March 14, 2016, [the trial court] ordered Child to remain in the kinship foster home of his foster mother, S.C.
Following a subsequent permanency review hearing on April 18, 2016, [the trial court] noted that Child had suffered behavioral problems while in the care of [J.C.], and that [J.C.] had made minimal progress toward alleviating the circumstances that led to Child's removal. The order additionally transferred physical custody of Child to D.A., a new kinship foster care provider.
Following a subsequent permanency [review] hearing . . . on July 25, 2016, [the trial court] found that [J.C.] had made little progress toward reunification, largely due to medical issues, and ordered that Child remain in the kinship foster home of D.A. These findings and dispositions remained unchanged over the course of subsequent permanency hearings on October 31, 2016, February 6, 2017, May 1, 2017, and July 31, 2017.
On October 23, 2017, [the trial court] conducted a permanency review hearing at which time physical custody of Child [was] transferred to G.D., a new kinship foster caregiver.
Following a permanency review hearing on January 22, 2018, [the trial court] permitted Child to have unsupervised day visits with his biological father, M.K., whose parental rights to Child had been terminated when Child was still an infant. [CYF] filed a motion for consideration of M.K.'s criminal record on February 15, 2018, given the grant of unsupervised visitation. On March 1, 2018, [the trial court] granted [CYF's] motion and after consideration of [M.K.'s] criminal record, permitted a continuation of the unsupervised visits.
Following a permanency review hearing on April 16, 2018, [the trial court] directed that physical custody of Child remain with kinship foster parent G.D., and that the permanency goal of placing [C]hild with a relative as a legal custodian remain unchanged. [The trial court] additionally permitted continued unsupervised day visits between Child and [M.K.], and additionally ordered [CYF] to assess [M.K.] as a possible placement resource.
At a subsequent permanency review hearing on July 9, 2018, after determining that Child had expressed a desire to live with [M.K.], while physical custody remained with kinship foster parent G.D., [the trial court] continued to permit visits between Child and [M.K.], and ordered [CYF] to schedule an interactional evaluation with [M.K.]. On August 20, 2018, [the trial court] transferred physical custody of Child to biological father M.K., concluding that such disposition was better suited to the protection and physical, mental and moral welfare of Child.
On October 19, 2018, the guardian ad litem for Child filed a motion for foster care funds requesting that [the trial court] order [CYF] to make a referral to an appropriate foster care agency or issue unapproved foster care payments to [M.K.] Specifically, the guardian ad litem alleged that . . . M.K. had not received any form of foster care payments since Child's placement with him on August 20, 2018. The guardian ad litem asserted in the motion that it was her understanding that [CYF] was opposed to referring . . . M.K. for foster care certification which would allow him to become a certified foster parent, that Child wished to remain in the care of biological father, and that biological father required financial assistance to continue to care for [C]hild. The guardian ad litem further contended that it was in Child's best interests to remain with [M.K.] and for [M.K.] to become a certified foster parent or receive unapproved foster care payments retroactive to August 20, 2018.

         Trial Ct. Op., 1/24/19, at 3-6 (some capitalization omitted). The docket and record do not indicate that CYF filed a response or memorandum of law to the guardian ad litem's motion. On November 14, 2018, the trial court held a hearing on the guardian ad litem's motion and granted it.

         On November 21, 2018, CYF filed a motion for reconsideration and supporting memorandum of law.[1] In the reconsideration motion, CYF alleges that on November 14, 2018, it "presented" to the trial court a memorandum of law in opposition to the guardian ad litem's motion. CYF's Mot. for Recons., 11/21/18, at ¶ 5. CYF's memorandum of law asserted that M.K., whose parental rights to Child were previously terminated, cannot collect foster care payments for Child. CYF's Mem. of Law Opposing the Payment of Unapproved Foster Care, 11/21/18, at 1 (unpaginated).

         CYF filed a timely notice of appeal and a Pa.R.A.P. 1925(b) statement on December 12, 2018. The trial court subsequently denied CYF's motion for reconsideration on December 13, 2018.

         CYF raises the following issue:

Whether the trial court abused its discretion and/or erred as a matter of law by ordering unapproved foster care payments when there was no showing that biological father, whose parental rights had been previously terminated, was in financial need of such assistance and/or could qualify for such assistance through federal or state funding?

         CYF's Brief at 4.[2]

         In support of its claim, CYF raises three arguments. First, CYF initially acknowledges that M.K. is Child's biological father. Id. at 10. CYF argues that because the trial court had terminated M.K.'s parental rights shortly after Child's birth, M.K. "does not meet the definition of a foster parent" for the purpose of receiving foster care payments. Id. In support, CYF cites to the Pennsylvania Code, [3] but concedes the trial court is not bound by it. Id. CYF maintains, however, that "to pay foster care payments to a biological parent would be fiscally irresponsible and in direct contravention of public policy as well as the law."[4] Id.

         Our standard of review in dependency cases is well-settled:

[W]e must accept the facts as found by the trial court unless they are not supported by the record. Although bound by the facts, we are not bound by the trial court's inferences, deductions, and conclusions therefrom; we must exercise our independent judgment in reviewing the court's determination, as opposed to its findings of fact, and must order whatever right and justice dictate. We review for abuse of discretion. Our scope of review, accordingly, is of the broadest possible nature. It is this Court's responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Nevertheless, we accord great weight to the court's fact-finding function because the court is in the best position to observe and rule on the credibility of the parties and witnesses.

In re W.M., 41 A.3d 618, 622 (Pa. Super. 2012) (citation omitted).

         The federal Adoption Assistance and Child Welfare Act of 1980 (AACWA)[5] "provides that States will be reimbursed for a percentage of foster care and adoption assistance payments when the State satisfies the [AACWA's] requirements."[6] Id. at 623-24. Pennsylvania satisfied the AACWA's requirements by establishing its Aid to Families with Dependent Children-Foster Care (AFDC-FC) program.[7] Pa. Dep't of Public Welfare v. United States, 411 F.Supp.2d 586, 588-89 (W.D. Pa. 2006).[8] "AFDC-FC benefits cover 'the cost of food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child and reasonable travel to the child's home for visitation.' 42 U.S.C. § 675(4)(A)." Id. at 589.

         In pertinent part, Section 672(a) of the AACWA ...


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