In re TAMEKA M., a minor.
Appeal of CHILDREN AND YOUTH SERVICES OF ALLEGHENY COUNTY.
Superior Court of Pennsylvania.
Argued Dec. 9, 1986. Filed Oct. 30, 1987.
Reargument Denied Dec. 23, 1987.
534 A.2d 782
Before CIRILLO, President Judge, and ROWLEY, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and POPOVICH, JJ.
ROWLEY, Judge:
Children and Youth Services of Allegheny County (CYS)
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
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
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 depend-
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
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
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.
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(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.
(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.
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
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
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
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.1 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 conditions or limitations are necessary to meet the
Disposition of dependent child
(a) General rule.—If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.
The child advocate argues that the disposition and purpose sections of the Juvenile Act authorize the entry of the present order and that the trial court found that placement of Tameka in Montessori was in her best interest. It is argued that the order is a condition and limitation on her placement in the foster parents’ home as contemplated by the disposition section of the Act and that whether CYS is reimbursed by DPW for the tuition is rendered legally irrelevant by Lowry in assessing the authority of the juvenile court to enter the order. The child advocate further argues that because the order appealed from also ordered Tameka to remain with the foster parents, the order constituted a disposition under
CYS’ argument raised a fundamental question as to the extent of the authority the juvenile court may exercise over a child subject to its jurisdiction in a dependency proceeding and the court‘s authority to order CYS to act. To define the
In re Lowry presented our Supreme Court with the issue of whether the juvenile court had the authority under
In ordering a disposition under Section 6351, the court acts not in the role of adjudicator reviewing the action of an administrative agency, in which case, the regulations promulgated to bind that agency could not be ignored; rather the court acts pursuant to a separate discretionary role with the purpose of meeting the child‘s best interests.
Id. 506 Pa. at 127, 484 A.2d at 386. The Court then considered the question of whether the juvenile court had the authority to order CYS to supervise and fund the placements. The Court noted that the Public Welfare Code and Public Welfare regulations imposed a duty on CYS to provide services and care when ordered to do so by the juvenile court pursuant to a dispositional order. Thus, the
In arguing that Lowry and the disposition statute are limited to where the child is placed, CYS seeks to capitalize on the following distinction between Lowry and the present case: in Lowry the order appealed from was a dispositional order transferring legal custody of the dependent child to the foster parents; in our case the order directs CYS to pay school funds. Based on the language of the Act, the purposes which the Act seeks to achieve, and the temporary nature of foster care, we find that the difference between the orders is immaterial in resolving the issues raised on appeal.
The Act itself provides that an order of disposition entered under
A custodian to whom legal custody has been given by the court under this chapter has the right to the physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child, subject to the
conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child.
Foster care is, by its very nature, temporary and it has been characterized as a state of limbo. In re Angry, 361 Pa.Super. 180, 522 A.2d 73 (1987); Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 512 A.2d 683 (1986); In re Damon B., 338 Pa.Super. 597, 488 A.2d 53 (1985). Accord In re E.F.V., 315 Pa.Super. 246, 461 A.2d 1263 (1983) (DPW has promulgated policy that no child should be allowed to drift in an out-of-home placement without the specific decision that he or she will be returned to his parents or be freed from parental custody and placed for adoption). In both In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983) and In Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980) this Court noted, in dicta, that to safeguard “the permanent welfare of the child, decrees concerning children are temporary and subject to modification to meet changing conditions.” Black, 273 Pa. Superior Ct. at 549, 417 A.2d at 1185. Further, the present issue arose during a regularly scheduled review hearing of Tameka‘s placement.
In light of the realities of foster care, it is essential that the juvenile court exercise its authority over the de-
We hold that the Supreme Court‘s holding in Lowry, that the juvenile court is not bound by DPW regulations and that it may order CYS to act, applies with equal force to a decision concerning the payment of school tuition and that the trial court had the authority to enter the order here under review.
We now turn to CYS’ argument that the order constituted an abuse of discretion. CYS argues that the juvenile court erred in considering the convenience of the foster parents in entering the order. This claim is apparently based on the fact that the foster mother testified that Montessori was within walking distance of the foster home. However, our review of the record fails to reveal that the trial court gave any consideration to this factor. It is also suggested that the trial court misconstrued a psychological report on Tameka in arriving at its decision. At the hearing, CYS introduced a psychological report prepared by a clinical psychologist four months after Tameka had enrolled at Montessori. According to the court, the report indicated that Tameka benefitted from a highly structured preschool program and that she should continue to be involved in such a program. The court noted that although the report did not mention Montessori by name, it could infer that the
Order affirmed.
TAMILIA, J., files a concurring and dissenting opinion in which DEL SOLE and POPOVICH, JJ., join.
TAMILIA, Judge, concurring and dissenting:
I have no quarrel with part one of the majority Opinion concerning the jurisdiction of this Court to hear the appeal. For the reasons stated in that section of the majority Opinion, I believe the appeal is not interlocutory in nature and is one of those special exceptions which requires this Court to make a determination. As to part two of the majority Opinion, I respectfully dissent.
The majority relies quite heavily on the Opinion of the Supreme Court in In re Lowry, 506 Pa. 121, 484 A.2d 383 (1984), as support for the broad powers of a juvenile court judge, not only to place a child in a qualified foster home, but to authorize any treatment the court believes necessary for the child. In Lowry, the issue was whether a court had the power to place a child in a foster home it deemed appropriate when the court had found that home to be qualified to receive and care for the child, and Children and Youth Services refused to certify it for placement. The Supreme Court held this function was clearly indicated under
§ 6351 Disposition of dependent child
(a) General rule.—If a child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental and moral welfare of the child.
(2) Subject to conditions and limitations as the court prescribes, transfer temporary legal custody to any of the following:
(i) any individual resident within or without the Commonwealth who, after study by the probation officer or other person or agency designed or designated by the court, is found by the court to be qualified to receive and care for the child.
The Supreme Court went on to find that certification of a home by the Department of Public Welfare, through its agency Children and Youth Services, required by the Department of Welfare regulations, 55 Pa. Code § 3700.68(b) and § 3130.39, and non-payment to a home if not certified under section 3140.21(c)(5), are binding only on Institution Districts and not the courts. It found ample authority in the Juvenile Act to permit the court to make placement outside these regulations. It finally determined that the qualifications of a foster home, when placement was needed, must ultimately be made by the court and could not be circumscribed by Department of Public Welfare regulations. This rationale was based on the need for expeditious placement or transfer of children, which might be obviated by requiring that placement be made only by or through an authorized agency. See footnote 4, pg. 387. It further buttressed its reasoning by holding that foster placements must be made available through the local institution district in accordance with statute,
the local authorities of any institution district shall have the power and for the purpose of protecting and promoting the welfare of children and youth, it shall be their duty to provide in foster family homes or child caring institutions adequate substitute care for any child in need of such care and, upon the request of the court to provide such service and care for children and youth who have been adjudicated dependent.
The sole issue in Lowry, supra, was the certification of a foster home as a qualified foster home for placement of a
In this case, the majority would expand that explicit power for placement of children in foster homes to permitting the Juvenile Court judge to authorize payment for education of a child without a determination that the facility was a treatment facility and, in doing so, unreasonably expands Lowry and imposes a serious threat to the orderly administration of treatment programs for the children, both dependent and delinquent, and subverts the responsibility of the administrative branch of government for fiscal management of the costs for the care and treatment of children.
This is not a situation as occasioned our review of Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). The Janet D. case clearly turned on whether the Juvenile Court could order an individualized treatment program for an extremely damaged child when the agency had failed to provide an adequate treatment program. The treatment to be provided for Janet D. was within the expectation and understanding of treatment as such. In this case, the agency had already provided a treatment program for the child that, in all respects, was designed to meet her needs, and which, in fact, cost substantially more than the educational program selected by the foster mother. It was funded through Allegheny County MH/MR, whereas the program selected by the foster parents met no funding criterion and would ultimately be funded from Allegheny County general funds.
As to the first, no evidence was presented that the school which the foster parents selected, a Montessori school, was anything but a highly-structured, educational program. It is licensed by the Department of Education and is not licensed for treatment. As such, it cannot be distinguished from scores of other schools, private in nature, which provide education for preschoolers whose parents want a more formal and structured preschool program than would otherwise be the case. The foster mother selected this program based on consultation with friends whereas Children and Youth Services based its placement with South Hills Therapeutic preschool program upon evaluations and recommendations by The Parent-Child Guidance Center specialists involved in planning for and treating this child. Foster placement of a child, who is a ward of the agency mandated to provide the supportive services necessary for placement of children and for monitoring their care and treatment as directed by the court, does not imbue the foster parents with an unlimited right to prescribe the care, treatment or the control of the child. Should there be no restriction other than that which might be imposed by a court Order, there would be no limitation to the placement and treatment of the child in accordance with the individual tastes, preference or whims of the foster parent. Aside from the effect on the child, it negates the responsibility of the agency to provide broad based uniform treatment (as well as individualized treatment), and the impact this would have on agency management and the tax burden would be chaotic. This was clearly recognized by the trial court in
With older children in foster care, possibilities for independent action by foster parents are even greater when it is accepted that virtually all children in placement have some emotional and school difficulties and dissatisfaction with some, if not most, community schools and treatment programs is not uncommon. In particular, emotional and educational problems that are school related require expert evaluation, testing and program matching; placement by a foster parent, without supporting testing and knowledge of the appropriateness of a particular program, cannot be encouraged as does the majority by its position here.
What parent, foster or otherwise, would not prefer Ellis School, Sewickley Academy or Shadyside Academy over a local school. Should the foster parent be Roman Catholic in faith, a strong preference for a Catholic school as opposed to a public school might be indicated. Likewise, persons of other faiths, whether it be Lutheran, Jewish, Jehovah Witness or Fundamentalist, might be predisposed toward enrolling the child in schools of their preference to provide structure that could be missing, according to their beliefs, in other schools. The point that must not be lost is that the average parent in the community, who is not subject to Juvenile Court control or the Children and Youth Services programming, might likewise want better schooling or treatment for its child, but would have to make a decision as to whether it could afford that treatment or not, and based on the realities of the economic situation, would do whatever was best under those conditions. As likely as not, this would result in utilizing the services of the school or treatment program that serves the need but is within their means as opposed to the best that is available.
Children and Youth Services has a similar responsibility, and it should not be arbitrarily put aside by foster parents. Considering that Allegheny County C.Y.S. has 1,731 children in placement out of the 10,114 children under supervi-
The second consideration concerns whether a foster parent is the true legal custodian as opposed to custody being awarded to the agency for placement of the child with foster parents. The majority buttresses its position that the foster parents acted appropriately in placing the children in the Montessori program by pointing to
§ 6357. Rights and duties of legal custodian
A custodian to whom legal custody has been given by the court under this chapter has the right to physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child, subject to the
conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child.
Custodian is defined as a person other than a parent or legal guardian who stands in loco parentis to the child or a person to whom legal custody of a child has been given by order of a court.
It would appear that under these sections, while the foster parents were “custodians“, no specific Order of custody was made to the foster parents creating the status of “legal custodians” in this case. In contravention to the custody Orders involved in Lowry, supra, where the court made specific awards of custody to specific individuals, in this case, as is generally the case, the initial Order of court, dated March 4, 1983, provided that on a finding of dependency, “it is ordered that the child be placed under supervision of Allegheny County Child Welfare Services in the custody of Kim Reynolds, mother of the child, to enroll in “Begin Again” program, review on June 3, 1983.” This is the only specific Order of custody to a person contained in the court record. By Order dated March 18, 1983, titled “Miscellaneous Order“, after a review hearing, supervision remained with Children and Youth Services pursuant to the prior Order of March 4, 1983. The Order was amended so that the child would be “placed in foster care pending hearing and/or Order of the court if/and as required.”
A non-specific Order of foster care does not designate a specific legal custodian and as such the agency would have the power to designate foster parents and if needed, to make changes when the situation required it. A change of foster parents could clearly be made without court approval or hearing and only if the nature of care, such as return to the parent or placement in an institution, changed, would court approval be required. Since ultimate control of the child, pursuant to court Order, resided with the agency, it was the agency that had legal custody, pursuant to
In view of the broad mandate given to Children and Youth Services providing treatment services of all kinds and responsibility of the local government and Department of Welfare to provide funds and support for this program, unqualified legal custody in the foster parents cannot be maintained. Thus the majority reliance on
(2) Subject to conditions and limitations as the court prescribes (the court may transfer temporary legal custody to any of the following)
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(ii) an agency or other private organization, licensed or otherwise authorized by law to receive and provide care for the child.
In this instance, the initial placement was to the care and supervision of Children and Youth Services, with authority by the court for placement in foster care. Thus the true legal custodian pursuant to
In In Re Davis, 502 Pa. 110, 465 A.2d 614 (1983), the Supreme Court held that the definition of custodian in the Juvenile Act and the definition of legal custodian are separate and distinct. Custodian, in the definition of
Plainly, foster parents, because they have physical custody of the child, are concerned with the child‘s day-to-day needs and, therefore, they do discharge many parental duties. However, it does not follow from this fact that
they thereby assume a status of in loco parentis to the child, distinguished by ‘rights and liabilities ... exactly the same as between parent and child.’ The reason that foster parents have physical custody is that it would be impractical for the agency to care for the child. The agency, while transferring physical custody to the foster parents, remains responsible for the care of the child and may, at any time required by the child‘s interests, regain physical custody and terminate the foster parent‘s relationship to the child.
Id., 331 Pa.Superior Ct. at 505, 480 A.2d at 1148-49. The Court quoted directly from Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), where the United States Supreme Court said:
The New York system divides parental function, functions among agency, foster parents and natural parents, and the definitions of the respective roles are often complex and often unclear.() The law transfers “care and custody” to the agency, ... but day-to-day supervision the child and his activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parent.() Nevertheless, agency supervision of the performance of the foster parents takes forms indicating that the foster parent does not have the full authority of a legal custodian.() Moreover, the natural parent‘s placement of the child with the agency does not surrender legal guardianship; [] the parent retains authority to act with respect to the child in certain circumstances [such as consent to surgery, consent to child‘s marriage, permit his enlistment in the armed forces or represent him at law]. Footnote omitted.
Crystal D.R., supra, 331 Pa.Superior Ct. at 509, 480 A.2d at 1150. This Court held the above quotation was specifically applicable to Crystal as the Pennsylvania Statute was virtually identical to the New York Statute.
Such distinctions are not uncommon in family law. Indeed, in the chapter on Actions for Custody, Partial Custody and Visition of Minor Children, Pa.R.C.P. 1915.1, Defini-
“Custody” means the legal right to keep, control, guard, care for and preserve a child and includes the terms “legal custody“, “physical custody“, and “shared custody“.
Unquestionably, legal custody and physical custody may be divided under the custody and visitation rules in a similar fashion to that found in foster care placement. It, therefore, follows from the above discussion that the foster parent is not imbued by any custodial right to contract for programs, without the approval of C.Y.S., and thereby commit the agency to payment.
The third consideration, as stated above, is whether the record, in fact, supports the decision by the trial judge to permit the foster parents to make this placement and, therefore, to direct the agency to fund the placement as one that is appropriate for the child. In a different context and under different factual circumstances, it is without question that in view of the holding in Lowry, supra, and Janet D., supra, the court has the ability to direct the agency to provide an adequate program where it is clearly evident that the agency has failed in its responsibility and if the needs of the child required. However, that does not appear to be the case before us.
Here, we must be concerned with the interpretation of the trial judge that the best program for the child was, in fact, the program selected by the foster parents. The major complaints of the foster parents appear to be that the therapeutic program required more involvement by them in transporting the child to and from school and that the child had to stay at school for longer hours and was tired and fell asleep in transit, waking up cranky and evincing screaming—behavior which was hard to cope with. The improvement produced by withdrawing the child from the therapeutic program and placing the child in the Montessori School was that the child had shorter hours and was able to sleep
Reading the record closely, it appeared the court was moving in the right direction up until the point where he drew inferences from the psychological report provided by Dr. Harway. It is significant that the court suggested “before an appeal in this matter [there be] a conciliation, and I would call Dr. Harway and ask her if she thinks it is better to remove that child from the school and place her back in the therapeutic preschool or ask her if they think the child should remain in preschool.” (Emphasis added.) (T.T. 8/31/84, p. 38.) Thereafter, the discussion on the record was to the effect that Dr. Harway would be called, there would be a further evaluation and a decision would be made based on testimony developed with Dr. Harway. The report by Dr. Harway is definitive, with very specific and explicit directions as to how the child should be managed by the foster parents in terms of her masochistic and acting-up behavior. Dr. Harway also indicated the child needed a structured and organized environment within the home and within the school where consistent orderly schedules and rules may be applied in an organized and predictable manner so that the child learns to derive some sense of security from the predictability of the important adults in her environment. A final handwritten statement by Dr. Harway, in the report, is that continuation of preschool experience is strongly urged to give further help in providing socialization experiences which
The comparison and the relative effectiveness of the two programs was not specifically dealt with by Dr. Harway in her report nor was there any evaluation of the change in the child‘s behavior alleged by the foster parents when the child was removed from the therapeutic program and placed in the Montessori school. It is conceivable the child improved because the foster parents were less tense as their needs were being met to a greater extent by having the child closer to home and having the child napping in the afternoon rather than being upset from the transportation and involvement in the counselling process. It is also a possibility that the child‘s worsened behavior while in the therapeutic program was the initial step in changing direction as behavior sometimes becomes worse as therapy begins. Nor was there any consideration of the effect of maturity and aging in relation to the child‘s behavior. Children at the preschool level change rapidly in behavior and adjustment even without involvement in programs. In situations such as these, the Juvenile Court judge is placed in a very difficult position as the inclination is to accept the word of the foster parents, who believe they are doing what is best for the child, but at the same time, retain an awareness that the treatment and programming for the child must remain subject to the control of the agency or the entire delivery system for services for children in these cases will disintegrate.
Historically, by creation of the Children and Youth Services, subject to the legislatively mandated relationship to the Department of Public Welfare and regulations promulgated by the Department of Welfare, the extensive control for adjudication and treatment previously imposed by law in the Juvenile Court, was substantially altered. In the mid-sixties it was determined juvenile courts could no longer direct treatment and provide services in conjunction with the Institution District, for dependent children as their needs were far greater than a court, with its limited resources, could supply. The creation of Children and Youth Services was to fulfill the broad requirements and multiple service delivery systems, monitoring, protective services and the development of programs that are beyond the scope of courts to provide. While a court has the responsibility for adjudication and disposition, delivery of services lies with the agency in conjunction with the other systems derivative of the Department of Welfare, Department of Mental Health and the local county Institution Districts. The courts will never be required to stand by when the system fails to protect the best interests of the child and they may exercise their power to assure treatment for the child as we have indicated in Janet D., supra. However, the thin line between protecting the interest of the child and entering into the delivery of treatment processes by ordering the Department of Welfare to pay for systems which are not legally fundable or reimbursable goes beyond what is appropriate in cases such as these.
Here, the child had been placed in a therapeutic program that was funded through the Mental Health Services and would have provided no additional drain on the general fund of the Allegheny County Institution District since there was a mandated source for payment of these costs. It was not unreasonable for the agency to insist that the child be placed in programs which were properly funded. An additional hearing, with Dr. Harway‘s testimony on the record, would have been extremely helpful to all concerned in order to determine whether the request would have been reasonable or not.
I would add that Judge Novak is a distinguished and expert judge in the field of juvenile law and his proceeding in this matter was consistent with what we know to be a deeply concerned and committed approach to the difficult issues discussed above. It is possible that matters not of
I would, therefore, reverse the Order of the lower court and remand for further consideration of the appropriateness of the Order, consistent with the above.