In re: J.R.

875 A.2d 1111, 2005 Pa. Super. 178, 2005 Pa. Super. LEXIS 1280
CourtSuperior Court of Pennsylvania
DecidedMay 17, 2005
StatusPublished
Cited by22 cases

This text of 875 A.2d 1111 (In re: J.R.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re: J.R., 875 A.2d 1111, 2005 Pa. Super. 178, 2005 Pa. Super. LEXIS 1280 (Pa. Ct. App. 2005).

Opinion

OPINION BY

BECK, J.:

¶ 1 The Philadelphia Department of Human Services [DHS] appeals a juvenile court order that directed DHS to provide home telephone service to the father of a dependent child. We vacate the order.

¶ 2 The minor child J.R. was adjudicated dependent on November 6, 2002, subsequent to a voluntary placement agreement signed by his father [Father]. J.R. was born in July, 1993 and resided with Father prior to coming into the custody of DHS. Father acknowledged that he was unable to provide adequate supervision to J.R., who suffers from a behavioral disorder. Since late 2003 or early 2004, J.R. has lived in a therapeutic foster home where he receives special education and therapy.

¶ 3 Since J.R.’s adjudication of dependency, permanency hearings have been held at regular intervals in accordance with the Pennsylvania Juvenile Act.1 Father did not attend the February 2004 hearing, and his whereabouts at that time were unknown. Father did attend the June 2004 hearing, at which time he was given a bi-weekly supervised visitation schedule and transportation tokens for the visits. At the September 2004 hearing, a DHS social worker testified that Father was attending only approximately fifty percent of the visits. Father testified that he wanted to visit with J.R., but the visits were cancelled when he did not call DHS on the Thursday before to confirm his attendance. DHS reiterated that its policy requires Father to call the agency to confirm his visits or they will be cancelled.

¶ 4 After a DHS social worker informed the court that Father did not have a telephone, sua sponte the court advised DHS that Father needed home telephone service. DHS objected to providing telephone service for Father and suggested some alternatives (providing the modest funds necessary for the biweekly phone calls; providing a calling card; having Father’s friend make the calls, as she has done in some instances previously). The court did not entertain these alternatives, but ordered DHS to provide home telephone service to Father to enable him to make the biweekly calls to confirm his visits with J.R.

¶ 5 DHS filed a post-trial motion for reconsideration of the order to provide telephone service to Father on October 7, 2004. The juvenile court denied that motion on November 3, 2004. DHS filed this appeal on October 29, 2004, raising the following issues. First, DHS contends that the court erred in ordering home telephone service without conducting an inquiry into the other adequate, reasonable and equally effective, but less costly alternatives that were presented. Second, DHS contends that the court committed an error of law in basing its order for telephone service on alleged facts regarding the cost of home telephone service that were not in the certified record.2 Third, DHS contends that the court abused its [1114]*1114discretion in ordering home telephone service for Father in the absence of a finding that this service would insure consistent visitation between him and J.R. and thus serve the child’s emotional and moral welfare.

¶ 6 We must first address whether the order in question is appealable. The order is interlocutory, as there has been no final disposition and the parties remain in court. See In re Tameka M., 368 Pa.Super. 525, 534 A.2d 782, 784 (1987), aff'd, 525 Pa. 348, 580 A.2d 750 (1990). Nonetheless, we may review an interlocutory order if it fits within the confines of the collateral order doctrine. By this doctrine, an interlocutory order is 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.” In re J.S.C., 851 A.2d 189, 191 (Pa.Super.2004) (citing Pa.R.AP. 313).

¶ 7 We find that the order in question is a collateral order, as it meets the three requirements above. First, the order for telephone service is separable from and collateral to the main cause of action, which is the dependency determination and disposition. Second, the right involved is DHS’s discretion to determine allocation of limited resources. This is a right too important to be denied review. See In re Tameka M., 525 Pa. 348, 352, 580 A.2d 750, 752 (1990); J.S.C., supra at 192. Third, if review is postponed and DHS ultimately prevails, it is unlikely that the agency will be able to recoup the funds paid out pursuant to the court order. Thus we find that the order is appealable under the collateral order doctrine, and we therefore have jurisdiction to review the merits.

¶ 8 Our standard of review is abuse of discretion when we review a juvenile court order requiring a child welfare agency to fund a particular service. In re N.E., 787 A.2d 1040, 1042 (Pa.Super.2001) (citing Tameka M., supra, 525 Pa. at 348, 580 A.2d at 750). An abuse of discretion is not merely an error of judgment, but is, inter alia, a manifestly unreasonable judgment or a misapplication of law. Id.

¶ 9 The juvenile court exercises continuing, independent discretion with regard to the interest of a dependent child. Tameka M., supra, 525 Pa. at 354, 580 A.2d at 753. This authority derives from section 6351 of the Juvenile Act, which grants the court power to issue “orders of disposition best suited to the safety, protection and physical, mental, and moral welfare of the [dependent] child.” 42 Pa. C.S.A. § 6351(a). In its disposition orders, the court also has the express authority to impose “conditions and limitations.” 42 Pa.C.S.A. § 6351(a)(1), (a)(2), (a)(2.1) As explained by our Supreme Court, “[i]n ordering a disposition under Section 6351 of the Juvenile Act, the court acts not in the role of adjudicator reviewing the action of an administrative agency, ... rather the court acts pursuant to a separate discretionary role with the purpose of meeting the child’s best interests.” Tameka M., supra, 525 Pa. at 354, 580 A.2d at 753. (quoting In re Lowry, 506 Pa. 121, 127, 484 A.2d 383, 386 (1984)).

¶ 10 In construing the Juvenile Act, both the juvenile courts and the appellate courts must also be guided by a fundamental purpose of the Act, which is “[t]o provide for the care, protection, safety and wholesome mental and physical development of children coming within the provisions of this chapter.” 42 Pa.C.S.A. § 6301(b)(1.1); Lowry, supra at 130-31, 484 A.2d at 388. This purpose imposes on a child welfare agency the legal duty to [1115]*1115provide financial support for the care and treatment of a dependent child. Tameka M., supra, 525 Pa. at 357, 580 A.2d at 755.

¶ 11 Applying the above principles, our Supreme Court upheld a juvenile court order mandating payment by a child welfare agency of non-reimbursable tuition at a special school. Tameka M., supra, 525 Pa. at 358-59, 580 A.2d at 755.

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Bluebook (online)
875 A.2d 1111, 2005 Pa. Super. 178, 2005 Pa. Super. LEXIS 1280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jr-pasuperct-2005.