*1
Appeal of CHILDREN AND YOUTH SERVICES OF
ALLEGHENY COUNTY. Supreme Pennsylvania. Court of
Argued March 1990. Sept. Decided *2 Solicitor, Esler, Dodaro, A. Asst. James County James J. Solicitor, County Dept., Timothy Law W. County Allegheny Solicitor, Pawol, for County Pittsburgh, appellant. Asst. Aid Cancilla, Advocacy Legal for Child Pittsburgh, Mark Soc. Natural Emery, Canonsberg, B. Mother.
Katherine FLAHERTY, C.J., LARSEN, NIX, Before ZAPPALA, CAPPY, McDERMOTT, PAPADAKOS and JJ. THE
OPINION OF COURT PAPADAKOS, Justice. of the relative presents question authority
This case as Allegheny County opposed Court of Juvenile Allegheny and Youth Services of County Children M., (“CYS”) legal a custody has Tameka child, respect choosing therapeutic educational with M., best interest. Tameka who was born plans the child’s 21, 1981, adjudicated dependent by the January placed supervision CYS Juvenile Court March, a foster placed family Tameka M. was with brother, younger Tameka’s Brian. who had earlier received through follow with rehabili- The natural mother failed to and, hence, permanent plan into put tation program adoption. effect for both children was Juvenile Court’s review of Tameka’s placement with the August was held on 1984. During hearing, the issue of payment for Tameka’s attendance at preschool was considered. Testimony presented at hearing revealed that in August of 1983 Tameka had been referred to the (Guidance Parent-Child Guidance Center Center) because of self-abusive behavior such picking at arms, her nose and upper lip until they bled. After an evaluation, the Guidance Center recommended that she be placed in the South Hills Therapeutic Preschool she where was enrolled in September of 1983. The pre- South Hills school was funded through Mental Health/Mental Retarda- tion and involved no cost or expense to CYS. December the foster mother removed Tameka from the South preschool because, Hills her, according to Tameka’s behav- ior deteriorated; had for example, her screaming and tant- rums had escalated. The foster mother also believed that Tameka was spending too school, much time at the causing *3 her sleeping pattern to interrupted. The foster parents then enrolled Tameka in a preschool Montessori in an effort to provide a more structured program for the child. The foster mother testified that Tameka’s improved behavior after the transfer. The cost of the Montessori program originally month, per $70.00 but had been increased to per month at the $80.00 time of the hearing. The foster parents had been paying the tuition for the Montessori school. At the hearing, review parents foster sought reimbursement from CYS for Tameka’s attendance at Mon- tessori. Because CYS would receive no reimbursement from the Department of Public Welfare for Tameka’s at- Montessori, tendance at the agency opposed paying her tuition there.
After reviewing the testimony of the caseworker and the mother, foster and a psychological report based an evaluation of Tameka conducted four months after she Montessori, enrolled at the Juvenile Court ordered CYS to reimburse the for Tameka’s attendance at Montessori. Although the Court acknowledged the finan-
351 CYS, found that Tameka’s limitations of Court cial spe- that she had demonstrated both masochistic behavior that her needs. The Court noted problems special and cial Hills program, in but had deteriorated the South behavior and therefore that in Montessori one improved had for her needs. special suited program Montessori was best at structured highly program concluded that The Court and that as educational therapeutic Montessori was as well interest. A direct Tameka’s best enrollment there was That court held Court followed. appeal Superior affirmed, Judge dissenting Tamilia appealable order 368 opinion joined by Judges Popovich. Del Sole an A.2d 782. Pa.Super. 534 alia, inter on In re Superior majority, relying, The Court Lowry, (1984), held trial 506 484 A.2d Pa. Act, 42 of the Juvenile power court had § 6351,1 continuing independent Pa.C.S.A. to exercise § order a supervision of a child and to original dependent the child agency given supervision has been public which for a the court found to be plan treatment pay held interest. Court further Superior the child’s best 6351(a) provides as follows: 1. Pa.C.S.A.§ Disposition child (a) child the the child is found to be General rule.—If may following disposition any orders of best suited court make mental, protection physical, the child: and moral welfare of guardian, (1) parents, remain or other Permit the child to with his custodian, scribes, pre- subject to conditions and limitations the court protec- including supervision as the court directed tion of the child. (2) Subject prescribes and limitations as the court to conditions legal custody any following: temporary transfer (i) Any resident within or without this Commonwealth individual *4 who, person agency by probation study after officer or other or court, designated by by qualified court to is found be and the child. receive care for (ii) Any agency private organization otherwise or other licensed or provide receive care for the child. authorized law to and (iii) public agency provide to receive care A authorized law for the child. (3) custody making any foregoing of in orders transfer Without juvenile court of state if the child to the another authorized ordering foreign supervi- (relating section 6363 accordance with sion). that Juvenile Court did not commit an abuse of discretion ordering when payment this case. granted
We the Petition for Appeal Allowance of of CYS because of the potentially far-reaching consequences of this case. situations where limited, resources are we are especially concerned with the proper allocation of discretion between courts agencies to determine the question of how those resources are to spent; be and we are also concerned with whether our decision in In re Lowry, supra, should distinguishable from the instant case. For the below, reasons set forth we affirm.
CYS argues that the Superior Court erred in holding that
the Juvenile Court properly considered the question of the
Montessori school at all. CYS maintains that
question
only arose at the instance of the
parents,
foster
and that
they have no standing to raise
question.
CYS relies on
In Re Adoption
D.R.,
Crystal
331 Pa.Superior
Ct.
(1984).
The Superior Court properly rejected this claim. They held that the argument need not be considered be cause it was the Juvenile Court order being reviewed and that order was entered after an evidentiary hearing, and not as a result of the foster parents’ actions. The Juvenile Court maintains a continuing plenary jurisdiction in dependency cases under 42 (set Pa.C.S.A. forth at above, n. 1 In Re Lowry, supra, see, below) discussed and has power to review the circumstances of depend ent juveniles and to question both legal custodian, CYS, and the concerning the condition and the needs of the dependent child. This case is unlike that of Crystal D.R. There, the foster parents began an indepen dent proceeding to affect the parental rights of the natural parents. That kind of proceeding properly requires *5 party parentis. in loco limited the initiative be taking either at the outset standing Here, problem was no there its course because Juvenile during or proceeding 6351(a)(2) under continuing jurisdiction acquired Court § child. dependent M. to be a found Tameka once that court holding Court erred Superior that the argues also CYS 6351 of the power has the Juvenile Court § child’s dependent to fund a Act to order CYS Juvenile non-therapeutic as a they at what characterize attendance nor funded neither licensed which was pre-school turns, at argument This of Public Welfare. Department 6351(a) gives the language on the part, least § for dependent orders disposition to make authority Court physi- protection are “best suited to children which (a)(2) mental, of the child.” Section cal, and moral welfare custody to make orders for the on to the court goes permit as the conditions and limitations child “subject of the also concerns the reach argument The prescribes.” court and limitations impose conditions authority of the court’s supra. decision in In Re Lowry, under our gave ruled that Superior Lowry Court § the cost to order CYS to bear authority Court the Juvenile we held that Lowry, Montessori school. of the child place expressly granted power court’s (see 6351(a)(2)(i))was in the of named residents custody qualified of foster cértified as not limited to the list only would with whom be county, placement reimbursed course that would entitle CYS be of Public Welfare. Department this con- distinguish Lowry basis: Lowry CYS would to deal with the authority of the court’s scope sidered child, express- an which is authority of a custody Act. This must be exercised under the ly given, and which case, however, very general language “subject involves the prescribes.” as the court CYS to conditions and limitations con- general language should argues very that this exercise Courts to broadly strued to allow Juvenile disregard exper- independent discretion completely child care budgetary public agen- tise and the limitations cies. argument really
This addressed not to the Juvenile *6 of its under power, Court’s but the character functions Act. is that some the agreed point the It at Juvenile Court for the power impose protection has the orders the dependent question interests of children. The is whether the court is to exercise independent judgment concerning child, the for each or whether it is to sit program dependent public of the decisions of the adequacy in review assigns child care to which the court the care and agency of the child. legal custody held that under Superior majority Lowry Court’s continuing, court could exercise a dis-
juvenile
independent
in the interest of
child. This is correct.
In
cretion
held
a
ordering
disposition
Re
we
Lowry,
“[i]n
Act, the court
not in the
Section 6351 of the Juvenile
acts
role of
the action of an administrative
adjudicator reviewing
rather
the court acts
a
agency,
pursuant
separate
...
discretionary
purpose
meeting
role with
child’s
best
interests.”
The real at issue whether into account or taking its Court abused discretion would not reimbursed finding decisive fact CYS school approved for the cost of the Montessori by the State how, facts, (It is hard to see on these the court. M., it could be considering the direct welfare of Tameka other any the trial court abused its discretion argued that This, turn, of whether question raises way.) Court, statu in order to vindicate the fundamental Juvenile to her right “protection of a child own tory welfare,” mental and moral order assistance physical, may itself, will county agency, ultimately County that a raising expenditure and/or pay through have to has authori tax revenues. We find that the Juvenile Court *7 order under the Act and that ty to enter such an Juvenile in doing that court did not its discretion so this by abuse case. addressed, in in point part, Lowry.
This at least case, the the placed homes into which Juvenile Court prior approval the children had not received as in compliance Department foster care homes with of Public (DPW) regulations. Consequently, Welfare CYS would placement for the costs of in a non-certified be reimbursed home, therefore pursuant regulations, to DPW would Nonetheless, placement to the full cost of itself. have bear we stated: to its initia- authority place,
That CYS is without own clear, tive, approved a child in an home is 55 as-yet 3700.68(b), However, 2305 Pa.Code 3130.39. Section §§ Code, 2305, 62 provides Public Welfare P.S. § institution district shall any local authorities “[t]he and for the power, purpose protecting have promoting the welfare of children and it shall be youth, ..., homes or child duty provide family their to caring adequate any institutions substitute care for child court, and, upon request need of such care youth are children and such services provide for dependent, been adjudicated
who have ...” 62 P.S. Thus, of a imprimatur supplied). (emphasis § order to its au- pursuant entering dispositional court 6351, duty conjunction with thority under Section 2305, under district Section the institution placed upon supra, Again, this result is participation. mandates CYS set forth regulations contemplated by Department including the agency, the county services of required the court and care ordered services provision “any ...,” 55 Pa.Code Act of the Juvenile provisions services, ser- including 3130.38(a) required and “other § court____” 55 Pa.Code or care ordered vices 3130.34(4). § dis- institution
Furthermore,
county
to the
concomitant
duty
financially
is the
provide
services
duty
trict’s
v. Allegheny
children. Schade
support
its
District,
507,
County Institution
Department regulations are a which provided by county of service several classes 3140.- Section Department. the not reimbursable 21(c)(5) provides that no case shall the following “[i]n ____ be costs considered as (5) reimbursable costs: the care, maintenance, cost of and treatment of children placed facilities which not do meet the requirements 3130.39 [limiting county the the agency to [55 Pa.Code] § of approved use only]____” facilities 55 Pa.Code 3140.21(c)(5). this, It does not follow from as CYS has § argued, that a court is without authority order county institution district to fund non-approved place- Rather, ments. county result is that the will bear the cost placement entire of the unless and until it conducts review of the home and the custodians and certifies the home, as an home approved or the child in places approved an home.
In making any disposition pursuant to its authority under Section the court is guided by overriding principle acting care, “to for provide protection, physical wholesome mental and chil- development of dren coming provisions within the chapter. this 6301(b)(1). too, We, Pa.C.S.A. in construing the Juve- Act, nile are directed by Section 6301 to observe the same stated purpose. Accordingly, that result which en- will courage, than discourage, rather action related to the protection child, best interests and is preferred____ A.2d at 387-388. repeat, law, our give We CYS has the duty to support children, financial to dependent and Juvenile Court has the to act to for duty provide “protection physical, mental and moral welfare” of a child. This bestows on a child the legal right to such care paid and treatment Were CYS. the choice schools, here between two effective equally both suited to needs, special child’s the costs of one of was not, reimbursable DPW and the other would no we have holding hesitancy that it would be an abuse discretion not to direct the child be sent school the expenses of which were reimbursable. But that Here, the choice here. facts show that school whose *9 358 adequate not were reimbursable was while
expenses
provide adequate
Montessori school would
non-reimbursable
ignore
to
clearly
It
not error
reimbursabili
treatment.
was
Act, our
in this
The Juvenile
reinforced
ty
situation.
law,
children
for
passed
case
benefit
inter
humanitarian ideals. Once the state
and is based on
corresponding
in an
life there is the
venes
individual’s
adequate
to
treatment
obligation
provide
services
Likins, 373
v.
487
Welsch
F.Supp.
affected.
person
case, an
(D.Minn.1974).
“right
In the usual
to treatment”
brings
of an
a suit
alleging deprivation
inmate
institution
treat
and that he or she has not received
liberty
adequate
in the
to
treat
provide adequate
ment
institution. Failure
an
institution
ment to
inmate of a mental
is a violation
Wyatt
Stickney,
v.
See,
325
781
process.
F.Supp.
due
Here,
(M.D.Ala.1971).
presented
we are
with a somewhat
proven
different situation.
It has been
a child will
school
to
adequate
(expenses
receive
treatment at one
state)
but
receive
treat
adequate
reimbursed
will
To order
ment at
non-reimbursable Montessori school.
Tameka M. to attend a school
she would not receive
where
her
proper
deprive
process
treatment would be to
of due
her
rights
Pennsylva
and of
fundamental
under
laws of
such
expense
give
nia. Consideration of
must
way
governmental
circumstances
where the relevant
particularly
(here, CYS)
an
agency
expressed legal duty
provide
has
pay
such care.
in loco
of acting
courts have a tradition
juvenile
relief
parentis
particularly
are
well suited to order
they
is the
premise
that is treatment oriented. Treatment
entire
See,
Kent v. United
court
underlying
system.
juvenile
States,
1045,
(1966);
541,
383
86 S.Ct.
16
84
U.S.
L.Ed.2d
Gault,
1,
1428,
(1967);
Re
87 S.Ct.
527
387 U.S.
L.Ed.2d
358,
1068,
n CAPPY, J., joins majority and files a concurring opinion.
ZAPPALA, J., files a concurring opinion.
McDERMOTT, J., files a dissenting opinion.
CAPPY, Justice, concurring. I join opinion of the but write majority, separately to address two specific points. Before I reaching them wish to note that both the trial judge the foster parents should lauded be for their efforts in this difficult case.
First, it should emphasized be the foster parents recognized the special needs of Tameka and repeatedly asked for assistance and guidance from Children and Youth (CYS) Services in addressing those needs. Prior having to the child undergo a psychological evaluation as requested parents, CYS recommended placing the child in the South Hills Therapeutic Preschool. When the foster mother complained program this was not addressing Tameka’s specific problems, she was informed CYS that she could make arrangements alternate but, for the child they would not paid for by CYS.
The foster mother chose to do that. exactly She enrolled School, Tameka in the Montessori selecting that program because it highly was structured. Once there the child did improve. The foster mother so strongly believed that the preschool Montessori was the best program for Tameka paid that she the tuition herself. the time
By requested psychological evaluation finally occurred, Tameka had been the Montessori school for over four months. Dr. Harway’s evaluation concluded that the child needed a well structured preschool environment and that she seemed to be doing well at the time she was report not make a selection to which
evaluated. did of the reading the child. A fair preschool would best suit judge’s the trial conclusion that report supports entire school in the child was enrolled at time continue her edu- preferred place evaluation cation. emphasize I point
The second which make is He was forced to facing judge. difficult task the trial preschool remain in the decide child should whether interests, seemed to be in her best clearly environment that parent who to order a foster compensation refuse child; care for this diligent seeking had been so best or, pay- the recommendation of CYS and refuse accept unless she was returned to the schooling ment for Tameka’s Therapeutic Pre- program less at South Hills desirable *11 school. decision, trial obviously his took reaching judge that decisions
great adhering philosophy care to Tameka, such children as should be affecting dependant and needed for the appropriate made on the basis what child; financial considerations alone—as not on the basis of This decision should not be taken as recommended CYS. ignore Judges a to allow Juvenile Court means CYS; such only but as agencies financial restraints its is, resting particular it decision own facts. what reiterate, parents I of the foster and the Again efforts applauded. case must be particular trial in this judge Justice, ZAPPALA, concurring.
I I write separately emphasize concur in the result. here not be as authoriz- interpreted decision should seek, order, judges payment or ing The placement services in routine situations. “non-funded” the highly court was based on juvenile decision of the matter, in this presented hearing unusual of facts at set sui court determined that virtually generis. which is inadequate pre-school therapeutic state-funded extreme addressing this child’s masochistic ineffective behavior and other problems, behavioral while the non-fund- program proven ed had beneficial. This determination was consistent with the assessment provided psychologist to whom had referred order, CYS the child. The which was subject months, to review in six was both reasonable necessary for the protection and welfare of the child.
McDERMOTT, Justice, dissenting. The authority to select educational resources for children in the care of the Children and Youth Services of the Department of Welfare is circumscribed by budgetary re- straints. That many may be served those restraints must be observed. However may purposes laudable other than those prescribed agency, we cannot select more for one dependent than can I give we to all. respectfully dissent. regretfully
v. STEFANAK & SON Workmen’s
Compensation Appeal Board. Supreme Pennsylvania. Court of
Argued Sept.
Decided Oct. Caroselli, Beachler, Richard Spagnolli, Spagnolli G. & Pittsburgh, appellant.