Burns v. Dep't of Human Servs.
| Decision Date | 17 July 2018 |
| Docket Number | No. 1570 C.D. 2017,1570 C.D. 2017 |
| Citation | 190 A.3d 758 |
| Parties | Robert BURNS and Svetlana Burns, his wife, Petitioners v. DEPARTMENT OF HUMAN SERVICES, Respondent |
| Court | Pennsylvania Commonwealth Court |
Craig V. Bluestein, Fort Washington, for petitioners.
Darnel B. Long, Pittsburgh, for respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE FIZZANO CANNON
Robert Burns and Svetlana Burns (together, Petitioners) petition for review of the October 3, 2017 order of the Department of Human Services, Bureau of Hearings and Appeals (Department), which adopted, in its entirety, the Adjudication and Recommendation of the Administrative Law Judge (ALJ), recommending that Petitioners' appeal be dismissed for lack of jurisdiction. We affirm.
LD is a male child who was born on September 14, 2016. ALJ's Findings of Fact (F.F.) No. 1. On October 5, 2016, the Allegheny County Office of Children, Youth and Families (OCYF) filed an application for emergency protective custody of LD with the Court of Common Pleas of Allegheny County-Juvenile Division (Court of Common Pleas). F.F. No. 2. The Court of Common Pleas granted legal custody of LD to OCYF and later determined LD to be a dependent child by order dated November 4, 2016. F.F. No. 3. The hospital discharged LD on October 8, 2016, and OCYF placed LD in foster care in Petitioners' home. F.F. No. 4. LD remained in Petitioners' foster care for seven months. F.F. No. 5. On or about May 12, 2017, the Court of Common Pleas ordered that physical custody of LD remain with Petitioners and that legal custody remain with OCYF, but it also granted OCYF the authority to place LD with a relative by agreement. F.F. No. 6; Court of Common Pleas 5/12/17 Permanency Review Order (P.R. Order), Supplemental Reproduced Record (S.R.R.) at 5b-6b. The Court of Common Pleas found that OCYF had been working with the maternal grandmother as a possible placement for LD. 5/12/17 P.R. Order, S.R.R. at 6b.
On May 23, 2017, OCYF removed LD from Petitioners' foster care and placed LD with his maternal grandmother. F.F. No. 7. On that same day, Petitioners filed an administrative appeal with the Department challenging the removal of LD and requesting that LD be returned to their foster care. F.F. No. 8.
Also on May 23, 2017, Petitioners filed two motions with the Court of Common Pleas, a motion to stay removal and a motion to intervene. See F.F. No. 9. The Court of Common Pleas denied the motions, but, on June 2, 2017, held a status review hearing to consider Petitioners' evidence regarding LD's placement. F.F. No. 10. On June 2, 2017, the Court of Common Pleas issued an order confirming the placement of LD with his maternal grandmother. F.F. No. 11.
On May 25, 2017, the Department issued an order to show cause as to why Petitioners' appeal with the Department should not be dismissed for lack of jurisdiction. F.F. No. 13. Petitioners responded, arguing that they lacked advance written notice, asserting their right to a due process hearing and reiterating their desire for LD to be placed in their home. F.F. No. 14. On August 22, 2017, the Department conducted an administrative hearing on the issue of its jurisdiction. F.F. No. 15. At all times relevant to the appeal before the Department, the dependency case regarding LD had remained open in the Court of Common Pleas. See F.F. No. 12.
On September 11, 2017, the ALJ issued an Adjudication and Recommendation. The ALJ determined that LD's placement was under the jurisdiction of the Court of Common Pleas and that the Department was without authority to issue a contrary order. Adjudication at 4. The ALJ determined that the appeal was prohibited by 55 Pa. Code § 3700.73(a)(2), which provides: Adjudication at 4.
With respect to Petitioners' due process argument, the Department acknowledged that it did not issue a written notice to Petitioners 15 days before LD was removed from their foster care. Id. at 3. The ALJ noted, however, that the Court of Common Pleas held a hearing on June 2, 2017 for the purpose of addressing Petitioners' argument regarding LD's placement. Id. at 3-4. The Court of Common Pleas issued an order following that hearing confirming LD's placement in the home of his maternal grandmother. Id. at 4.
Accordingly, the ALJ recommended that Petitioners' appeal be dismissed because the Department lacked jurisdiction and could not grant the relief sought. Id. , ALJ's Recommendation. On October 3, 2017, the Department issued its order adopting the ALJ's Adjudication and Recommendation in its entirety and dismissing Petitioners' appeal.
Petitioners now petition this Court for review of the Department's order.1 OCYF has intervened.2
Before we address Petitioners' arguments, we must respond to OCYF's argument that this matter is moot. OCYF states that on December 15, 2017, the Court of Common Pleas entered an order closing LD's dependency case and granting LD's maternal grandmother legal and physical custody of LD. See OCYF's Brief at 8; S.R.R. at 10b.
Appellate courts in this Commonwealth will not decide moot questions. See In re Gross , 476 Pa. 203, 382 A.2d 116, 119 (1978). A court will dismiss an appeal as moot unless an actual case or controversy exists at all stages of the judicial or administrative process. Luzerne Cty. Children & Youth Servs. v. Dep't of Pub. Welfare , 826 A.2d 84, 86 (Pa. Cmwlth. 2003). "[A] legal question can become moot on appeal as a result of an intervening change in the facts of the case." See Gross , 382 A.2d at 119. An issue before the court is moot if, in ruling upon the issue, the court cannot enter an order that has any legal force or effect. Luzerne Cty. , 826 A.2d at 86. However, even where an appeal is technically moot, "where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court's decision," a court may proceed to address the merits of a claim. Sierra Club v. Pa. Pub. Util. Comm'n , 702 A.2d 1131, 1134 (Pa. Cmwlth. 1997) (en banc), aff'd , 557 Pa. 11, 731 A.2d 133 (1999).
This case falls within the exception where the conduct complained of is capable of repetition yet likely to evade review. Therefore, we will address the merits.
Petitioners argue that they were denied due process when LD was removed from their care essentially without notice and a meaningful opportunity to be heard and without being afforded the appeal process they claim is guaranteed to them pursuant to 55 Pa. Code § 3700.73.3 Petitioners argue that the Department erred and abused its discretion in determining that it lacked jurisdiction to hear Petitioners' appeal. Petitioners point out that, pursuant to 55 Pa. Code § 3700.73, foster parents may appeal the relocation of a child from the foster home except in five enumerated circumstances; they contend none of those exceptions apply here. The Department, however, ruled that one of the five exceptions applied, in particular, the exception that the removal was initiated by the court per 55 Pa. Code § 3700.73(a)(2). Petitioners disagree and maintain that the Department's determination is against the weight of the evidence because LD's removal from the foster home was "initiated" by OCYF, not the Court of Common Pleas. Petitioners argue that OCYF initiated the request to have LD declared dependent and then, ultimately, to remove LD from the foster home. Petitioners assert that the Court of Common Pleas only responded to OCYF's request to have LD removed upon agreement of the parties.4
Petitioners also argue that the Department erred in determining that it lacked jurisdiction because the Court of Common Pleas had jurisdiction with regard to the dependency of LD and could not grant the relief sought. Petitioners maintain that foster parents come into existence only because a court of common pleas has jurisdiction and, pursuant to that jurisdiction, has found a child to be dependent. Petitioners' Brief at 12. Petitioners argue that all five exceptions under 55 Pa. Code § 3700.73 presume the Court of Common Pleas already has jurisdiction.5 Petitioners maintain that Chapter 37 of Title 55 of the Pennsylvania Code is derived from the Juvenile Act6 so the concurrent jurisdiction was known and contemplated when the appeal procedure in the Pennsylvania Code was written. Petitioners point out that the "agreement" did not involve them because they lacked standing in the Court of Common Pleas to participate as a party.7 Petitioners argue, therefore, that the reasoning applied by the Department effectively eliminates all appeals by foster parents.
The provisions of the Juvenile Act apply to proceedings in which a child is alleged to be dependent. Sanner v. Dep't of Pub. Welfare , 878 A.2d 947, 952 (Pa. Cmwlth. 2005) ; see 42 Pa. C.S. § 6303(a)(1). "The [Juvenile] Act also clearly envisions the continuing supervision over a dependent child, and one alleged to be dependent, until the court concludes the child is no longer dependent." Sanner , 878 A.2d at 952 (citing 42 Pa. C.S. § 6351 ). " ‘The [court of common pleas] Juvenile Court maintains a continuing plenary jurisdiction in dependency cases ... and has the power to review the circumstances of dependent juveniles ....’ " In re R.P. , 956 A.2d 449, 456 (Pa. Super. 2008) (emphasis in original) (quoting In re Tameka M. , 525 Pa. 348, 580 A.2d 750, 752 (1990) ). The Department "has no authority or jurisdiction to alter services that a supervising common pleas court has dictated as a result of reviewing allegations of, or a finding of, dependency." Sanner , 878 A.2d at 952.8 Where a court of common pleas approves the provisions of a plan in its order,...
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