In Re Tameka M.

534 A.2d 782, 368 Pa. Super. 525, 1987 Pa. Super. LEXIS 9542
CourtSupreme Court of Pennsylvania
DecidedOctober 30, 1987
Docket1235
StatusPublished
Cited by18 cases

This text of 534 A.2d 782 (In Re Tameka M.) is published on Counsel Stack Legal Research, covering Supreme 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 Tameka M., 534 A.2d 782, 368 Pa. Super. 525, 1987 Pa. Super. LEXIS 9542 (Pa. 1987).

Opinions

ROWLEY, Judge:

Children and Youth Services of Allegheny County (CYS) appeals from an Order of the juvenile court directing CYS [527]*527to reimburse foster parents for tuition paid by them to enroll Tameka M. in a Montessori preschool program, and to pay the cost of her continuing education in that program. The case was certified for en banc review to consider the following issues of first impression raised in a dependency proceeding under the Juvenile Act, 42 Pa.C.S. §§ 6301-6365: 1) is the order directing CYS to fund the foster parents’ placement of a dependent child in preschool final and appealable; and 2) does a juvenile court judge have authority to order CYS to a) fund the child’s placement in a non-therapeutic preschool not licensed by the Pennsylvania Department of Public Welfare (DPW), and b) fund the child’s placement in a preschool for which funds are not reimbursable from DPW. To place the issues in proper perspective, we must first consider the facts and procedure that preceded this appeal.

Tameka, bom January 21, 1981, was adjudicated dependent by the juvenile court and placed under supervision of CYS in March of 1983. Tameka was placed in the custody of a friend of Tameka’s natural mother. The placement proved problematic and within two weeks Tameka was placed with a foster family who had earlier received Tameka’s younger brother, Brian.

During this time period Tameka’s natural mother was directed to enroll in a program designed to assess her parenting skills and to facilitate the return of Tameka and Brian to her. She has, however, failed to follow through with the program and is no longer involved with her children. The permanent plan for both children is adoption. Tameka’s natural father has never appeared in any of the proceedings before the juvenile court.

A review of Tameka’s placement with the foster parents was held on August 31,1984. During the hearing, the issue of payment for Tameka’s attendance at preschool was considered. Testimony presented at the hearing revealed that in August of 1983 Tameka had been referred to the Parent-Child Guidance Center (Guidance Center) because of self-abusive behavior such as picking at her arms, nose and [528]*528upper lip until they bled; After an evaluation, the Guidance Center recommended that she be placed in the South Hills Therapeutic Preschool where she was enrolled in September of 1983. The South Hills preschool was funded through Mental Health/Mental Retardation and involved no cost or expense to CYS. In December of 1983, the foster mother removed Tameka from the South Hills preschool because, according to her, Tameka’s behavior had deteriorated; for example, her screaming and tantrums had escalated. The foster mother also believed that Tameka was spending too much time at the school, causing her sleeping pattern to be interrupted. The foster parents then enrolled Tameka in a Montessori preschool in an effort to provide a more structured program for the child. The foster mother testified that Tameka’s behavior improved after the transfer. The cost of the Montessori program was originally $70 per month, but had been increased to $80 per month at the time of the hearing. The foster parents had been paying the tuition for the Montessori. school. At the review hearing, the foster parents sought reimbursement from CYS for Tameka’s attendance at Montessori. Because CYS would receive no reimbursement from DPW for Tameka’s attendance at Montessori, the agency opposed paying her tuition there.

After reviewing the testimony of the caseworker and the foster mother, and a psychological report based on an evaluation of Tameka conducted four months after she enrolled at Montessori, the juvenile court ordered CYS to reimburse the foster parents for Tameka’s attendance at Montessori. Although the court acknowledged the financial limitations of CYS, it found that Tameka’s masochistic behavior demonstrated that she had both special problems and special needs. The court noted that her behavior had deteriorated in the South Hills program, but had improved in the Montessori one and therefore the Montessori program was best suited for her special needs. The court concluded that the highly structured program at Montessori was therapeutic as well as educational and that enrollment [529]*529there was in Tameka’s best interest. This direct appeal followed.

I.

The first issue to be resolved is whether the order is appealable. Although none of the parties have raised the issue, it is incumbent upon us to address the matter sua sponte. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Metropolitan Life Insurance Co. v. Bodge, 352 Pa.Super. 191, 507 A.2d 837 (1986). When the case was certified for en banc review, the parties were directed to address the appealability issue. Both parties argue that the order is appealable. Although CYS did not file a supplemental brief on the issue, it urged us, at oral argument, to so find. The child advocate assumes that the order is interlocutory, but argues that a prompt appeal best serves the interest of justice in a juvenile case and that waiting for a final order could preclude appellate review due to the length of time which may elapse before a final disposition is reached in the trial court in a dependency case.

To resolve the appealability question we first consider whether the order is a final one. Tameka was found to be dependent as that term is defined in the Act and a dispositional order was entered. An appeal cannot be taken from a dependency determination; instead, an aggrieved party must wait until an order of disposition is entered. In Interest of K.B., 276 Pa.Super. 380, 419 A.2d 508 (1980) (by Spaeth, J., with Hoffman, J. concurring in the result, and Van der Voort, J. dissenting.); In Interest of C.A.M., 264 Pa.Super. 300, 399 A.2d 786 (1979). In the present case, no appeal was taken from the dispositional order. Therefore, the case will remain active until one of the following events occurs: 1) Tameka is returned to her natural parent(s); 2) parental rights are terminated and Tameka is adopted, see In re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980) (once court terminated parental rights under the Adoption Act, issue of custody under Juvenile Act became moot and it was unnecessary to make a finding whether the minor was depend[530]*530ent), or 3) Tameka attains majority. The present plan for Tameka is adoption. Viewed in this context, the order directing CYS to pay for Tameka’s placement and continued enrollment in the preschool program at Montessori is not a final order, but is interlocutory. “[A]n order is final where it puts a litigant out of court or otherwise terminates the litigation by precluding a party from presenting the merits of a claim or defense to the trial court.” Fidelity Bank v. Duden, 361 Pa.Super. 124, 128, 521 A.2d 958, 960 (1987) (citations omitted). The present order achieves none of these results.

In addition to the fact that the order is interlocutory because the parties are not out of court and there has been no final disposition, it has been suggested that the appeal is premature because CYS has not been adjudged to be in contempt of the order and no sanctions have been imposed. Two cases are cited in support of this proposition: Hester v. Bagnato, 292 Pa.Super.

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Bluebook (online)
534 A.2d 782, 368 Pa. Super. 525, 1987 Pa. Super. LEXIS 9542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tameka-m-pa-1987.