In Re Tameka M.

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 42 Pa.C.S. § 6351(a)(2)(i) of the Juvenile Act, which reads:

§ 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.

*543 (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, 62 P.S. § 2305, which provides:

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.

484 A.2d 387 .

The sole issue in Lowry, supra, was the certification of a foster home as a qualified foster home for placement of a *544 child by the Juvenile Court. The Supreme Court found that authority was explicitly contained in the statute and the requirement of payment for the care of a child in the foster home was subsidiary and incidental to the power of the court to determine the qualifications of a foster home. The court, in effect, held that it was the court and not the Children and Youth Services which determined qualification and once qualification was established, then certification could follow. The court also found that there existed distinct and separate duties of the Department of Welfare and the Institution District to fund foster care placement.

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.

*545 This case raises three issues which have been little discussed by the majority. First is whether the court may order payment for education to any private school deemed appropriate by the foster parent. Second is whether a foster parent, under the Juvenile Act, is the true “legal custodian” of the child as opposed to the Children and Youth agency. Third is whether the record justifies a finding that the program adopted by the foster mother was a better program or met the needs of the child more fully than that provided by the agency.

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 *546 terms of its overall implications, although in this case, the actual impact would be less on the tax payers than the planned proposed by the Children arid Youth Services.

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 othér 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 *547 sion, the problems of monitoring, assuring treatment and funding would be astronomical and insurmountable. 1 While Lowry, supra, correctly pointed out that the state and the Institution District both have funding responsibility, Act 148 places responsibility on the legislature to fund children’s programs up to 75 per cent of their costs. 2 Each year, the state has failed to meet its match to a greater extent so that for fiscal year 1986-87, the projected Allegheny County ovematch is $8,500,000, and for fiscal year 1987-88, it is projected to be $20,000,000 (C.Y.S. Budget Projections 1987-88). Statewide children’s services are in crises with county budgets and a limited tax base with caps on millage rates being strained to the breaking point. It must be left to the County Administrators how best to spread finite funds so all children get equal treatment, rather than having foster parents or judges provide special treatment on a case-by-case basis.

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 42 Pa.C.S.A. § 6357, Rights and duties of legal custodian. That section states:

§ 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 *548 conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child.

Section 6302, Definitions, provides:

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 section 6357, and not the foster parents. The care of the child is a *549 responsibility of the Children and Youth Services which has the right, under both law and Department of Welfare regulations, to determine the nature of care and treatment, protection, training and education and to provide for the physical, mental and moral welfare of the child through the foster care program. While it may be true that physical custody was given to the foster parents, it is inappropriate to determine care and supervision and right of placement in the agency to be less than a form of legal custody. Unquestionably, the Juvenile Court has the power to make an award of legal custody to foster parents directly, but unless the foster parents are designated as such, it is difficult to see how this can be anything but a placement controlled by the agency in which primary legal responsibility resides. Section 6357 is a general section providing for placement, through the Juvenile Court, of both delinquent and dependent/deprived children. Legal custody may be awarded to an agency, individual or institution. Delinquency placements are usually directed to individuals, programs or institutions, with no intermediary. Dependency placements are usually to the Agency as an intermediary. Mental health placements may be to institutions or programs. This section, therefore, establishes the needed flexability to provide legal custody to institutions and individuals which can assume virtually all responsibility for care, and to the agency, which must assume much of the programmatic responsibility despite physical custody being in foster parents.

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 section 6357, Rights and duties of legal custodian, extends too far in delegating to the foster parents the right to provide any and all services absolutely, as needed and required by the child. The interpretation placed on this section by the majority would relegate to the agency only the power to place, with no power to determine any of the numerous *550 treatment, educational and other matters needed to be dealt with in a given situation. 42 Pa.C.S. § 6351(a)(2)(ii) relating to the disposition of a dependent child states:

(2) Subject to conditions and limitations as the court prescribes (the court may transfer temporary legal custody to any of the following)

(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 section 6351 is the agency and not the foster parent.

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 section 6302, in addition to holding, one “who stands in loco parentis” would apply also to a person awarded legal custody by a court. As we have said before, this definition is separate and distinct from the definition of legal custodian relied on by the majority. Legal custodian, for purposes of the Juvenile Act, may not include a foster parent unless legal custody has specifically been placed in that person by the court. This is made abundantly clear in the case of In Re Adoption of Crystal D.R., 331 Pa.Super. 501 , 480 A.2d 1146 (1984) (allocatur denied). In that case, this Court held, in interpreting section 6357, Rights and duties of legal custodian, that foster parents do not stand in loco parentis to the child nor are they legal custodians of the child. The court stated:

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 *551 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 Yisition of Minor Children, Pa.R.C.P. 1915.1, Defini *552 tions, the rules go into exhaustive detail in defining the intricate legal relationships involving custody. Rule 1915.-l(2)(b) provides:

“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 *553 in the afternoons and the school was within walking distance of the foster parents’ home presenting to them none of the transportation problems. The foster mother described the behavior as being improved but she agreed she could not really say the behavior was necessarily due to one school over the other. (T.T. 8/31/84, p. 18.) The trial judge relies on these statements from the foster mother to find that the child’s behavior deteriorated in the M.H./M.R. funded program and it improved in the Montessori program and that this evidence was unrebutted. Judge Novak also relied on a psychological evaluation by Dr. Harway from which he “infers” the Montessori program would be a suitable program for the child.

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 *554 this child very much needs. It is significant that the parental involvement with the therapeutic program was extensive and appeared to be questioned by the foster parents as focusing on them and not the child. (T.T. 8/31/84, p. 13.) The record discloses no component to the Montessori program that involves the foster parents. Since Judge Novak made a final Order directing that the child remain in the Montessori program, and that Children and Youth Services pay for this program, it appears his determination was made without the final step he himself suggested, that Dr. Harway present testimony as to which of the programs would most closely meet the needs of the child.

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 l,ess 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.

*555 For that reason, the final and perhaps crucial step would have been to have Dr. Harway, who is respected as a child psychologist, present testimony on that crucial aspect of the case so that if the trial court was required to make an exceptional Order to provide treatment outside of the parameters established by the Legislative Scheme, the Department of Welfare, the Department of Mental Health and the Institution District for the care and treatment of a child, the evidence would have been conclusive.

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.

*556 Courts must always be careful when they attempt to impose costs on administration of government agencies as the line dividing the executive, legislature and the judiciary, is one that should not be crossed. Even in such a critical matter as the adequate funding of court services, which was faced by the Supreme Court in the case of Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45 , 274 A.2d 193 (1971) (affirming that the courts have the power to compel the legislature to provide sufficient finances to abide by the constitutional mandate that the judiciary shall be free and independent and able to provide an efficient and effective system of justice), the Court said the court does not have unlimited power to obtain from the city whatever sums it would like or believes it needs for its proper functioning or adequate administration. Its wants and needs must be proved by it to be “reasonably necessary.” Id. Similarly here, the court, while it may desire to assess costs against the county Institution District (since the Department of Public Welfare will not reimburse) to provide services to children as it believes necessary, its power is not unlimited and reasonable necessity must be applied in making such a finding.

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 *557 record, of which we might have approved, justified his going forward with the Order. Because of the very substantial impact of this case on the entire delivery system of juvenile foster care, and the unknown implications for local budgeting and taxation which will flow from the erroneous finding of the majority, I must dissent.

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.

. Chart IV, A.C.Y.S. Report, Number and Percent of Children Receiving Service from ACYS 3-31-87 (foster home-749, adoptive home-207, subsidized adoption-329, group home-98, institutions-251, shelter-97, total = 1,731.

. 62 P.S. § 701 et seq.; §§ 704.1, 704.2, 709; Article VII Children and Youth. See also 55 Pa.Code 3140.1 et seq.