§ 3130.62. Parent appeals and fair hearings.
(a) The county agency shall provide to the parents, along with a copy of the family service plan and, if applicable, placement amendment, a written notice of their right to appeal the following to the Department’s Office of Hearings and Appeals:
(1) A determination which results in a denial, reduction, discontinuance, suspension or termination of service.
(2) The county agency’s failure to act upon a request for service with reasonable promptness.
(b) The notice shall include a statement of the parents’ right to be represented by an attorney or other representative and the name and address of the local legal services agency.
(c) In addition to the written notice, the county agency shall notify the parents of children who are under the jurisdiction of the court in writing of their right to petition the court regarding an action of the county agency affecting their children.
(d) If parents wish to appeal, they shall submit a written appeal to the county agency postmarked no later than 15 calendar days from the date of the written notice from the county agency.
(e) Upon receipt of the parent’s appeal, the county agency shall date-stamp the appeal and submit it, along with the proposed family service plan and placement amendment and court orders involving the parents and the child, to the Department’s Office of Hearings and Appeals, within 5 working days. The Office of Hearings and Appeals has the exclusive authority to grant or dismiss the appeal for failure to file in a timely manner.
(f) During an appeal procedure, the most current family service plan and placement amendment as approved by the county agency remains in effect.
(g) In appeal proceedings, the county agency has the burden of proving by clear and convincing evidence that the challenged term is necessary to achieve the goals of the service plan.
(h) The hearing examiner shall make a recommendation to the director of the Office of Hearings and Appeals. The director shall enter an order that is binding upon the parties to the proceeding. If the order requires a change in the plan, the county agency shall comply with the director’s order.
(i) This chapter does not supersede the authority vested by law in the State courts. The director of the Office of Hearings and Appeals has no authority to issue a ruling modifying a term of a service plan which has been specifically approved or ordered by a court of competent jurisdiction.
Authority The provisions of this § 3130.62 amended under Articles II, VII, IX and X of the Public Welfare Code (62 P. S. § § 201—211, 701—774, 901—922 and 1001—1080).
Source The provisions of this § 3130.62 amended January 23, 1987, effective January 24, 1987, 17 Pa.B. 392. Immediately preceding text appears at serial pages (75145) to (75146).
Notes of Decisions Dependency
Considering enormous implications of dependency finding, such a determination can only be made in compliance with statutory requirements regarding dependency determinations and cannot be made by trial court sua sponte without petition for dependency having been filed. Fallaro v. Yeager, 528 A.2d 222 (Pa. Super. 1987).
Jurisdiction
The Department of Public Welfare (DPW) erred in dismissing the parents’ appeal for lack of basis for appeal on the motion of the county Children and Youth Services (CYS) during a prehearing conference even though the parents’ written ‘‘Basis for Appeal’’ did not set forth grounds for appeal which fall within the DPW’s jurisdiction, where the father did state during the prehearing conference that he had requested specific services from CYS which were denied, and, any implicit factfinding during the prehearing conference, such as the rejection of the father’s statement, was improper. Tully v. Department of Public Welfare, 727 A.2d 1219 (Pa. Cmwlth. 1999).
Right to Appeal
Department of Public Welfare had no authority to review mother’s appeal to modify terms of family service plan developed by hearing master resulting from child dependency hearing; Court of Common Pleas approved the plan in it’s order adopting the hearing master’s recommended decision and mother’s only recourse was to present her claims to the Court. Sanner v. Department of Public Welfare, 878 A.2d 947, 953 (Pa. Cmwlth. 2005).
The Department of Public Welfare did not err in not conducting a full evidentiary hearing on mother’s appeal of family service plan from child dependency case when her appeal presented no factual issues that would have provided the Department a basis to grant relief. Sanner v. Department of Public Welfare, 878 A.2d 947, 953 (Pa. Cmwlth. 2005).
Following repeated failure of the petitioner to attend hearings and respond to notices, dismissal of her appeal was appropriate. Dismissal was further justified because petitioner failed to state a claim within the jurisdiction of the Bureau of Hearings and Appeals as required by § 3130.62(a). Burch v. Department of Public Welfare, 815 A.2d 1143 (Pa. Cmwlth. 2002).
Where the father’s basis for appeal was stated as violations of Chapter 3680, the appeal was properly dismissed. Those regulations do not govern the administration or operation of county children and youth social service agencies, and therefore are not applicable to the instant action, which involves such an agency. Hudock v. Department of Public Welfare, 808 A.2d 310 (Pa. Cmwlth. 2002).
Agency goal change of dependent children to adoption is a final, and appealable order. In the Interest of M. B., 674 A.2d 702 (Pa. Super. 1996); appeal denied 688 A.2d 172 (Pa. 1997).
This section does not provide for an appeal concerning the goal of a family service plan; jurisdiction over such an appeal lies not with the DPW, but with the county Court of Common Pleas. Conklin v. Department of Public Welfare, 522 A.2d 1207 (Pa. Cmwlth. 1987).
Cross References This section cited in 55 Pa. Code § 3130.68 (relating to visiting and communication policies).
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