J-S23030-19

                                  2019 PA Super 248

    IN THE INTEREST OF: D.M.D.-C.              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: ALLEGHENY COUNTY                :
    OFFICE OF CHILDREN YOUTH AND               :
    FAMILIES                                   :
                                               :
                                               :
                                               :   No. 1773 WDA 2018

               Appeal from the Order Entered November 14, 2018
       In the Court of Common Pleas of Allegheny County Family Court at
                        No(s): CP-02-DP-0001056-2015

BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

OPINION BY NICHOLS, J.:                                FILED AUGUST 19, 2019

        Appellant Allegheny County Office of Children, Youth, and Families (CYF)

appeals from the order granting the motion filed by D.M.D.-C. (Child), born in

November 2006, to have foster care payments paid to M.K., Child’s biological

father whose parental rights were previously terminated when Child was an

infant. CYF argues that the trial court abused its discretion by ordering that

M.K. receive foster care payments. We affirm.

        The factual and procedural background are undisputed.

        On June 5, 2015, J.C., [the adoptive father of Child], filed a private
        dependency petition pursuant to 42 Pa.C.S.[] § 6334 alleging that
        Child had committed specific acts of habitual disobedience. The
        alleged acts of disobedience by Child included lying, manipulative
        conduct, threats, verbal aggression, sexual displays, and lack of
        remorse for his actions. [J.C.] alleged in the petition fear for his
        own safety and the safety of Child. [The trial court] appointed a
        guardian ad litem, and on August 24, 201[5], entered an order for
        emergency protective custody . . . .
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S23030-19



     Following an August 26, 2015 shelter care hearing pursuant to 42
     Pa.C.S.[] § 6332, [the trial court] found [J.C.] unable to care for
     Child due to [J.C.] suffering a serious medical condition.
     Concluding that returning [Child] to the home [of J.C.] was not in
     [Child’s] best interests and that to allow Child to remain in [J.C.’s]
     home would be contrary to [Child’s] welfare, [the trial court]
     transferred legal custody of Child to [CYF], and physical custody
     of Child to a foster parent. The order referred the foster parent
     for foster care certification and directed that she be provided with
     emergency caregiver funds.

     On December 2, 2015, [the trial court] adjudicated Child
     dependent pursuant to 42 Pa.C.S.[] § 6302.         Following a
     permanency review hearing on March 14, 2016, [the trial court]
     ordered Child to remain in the kinship foster home of his foster
     mother, S.C.

     Following a subsequent permanency review hearing on April 18,
     2016, [the trial court] noted that Child had suffered behavioral
     problems while in the care of [J.C.], and that [J.C.] had made
     minimal progress toward alleviating the circumstances that led to
     Child’s removal.    The order additionally transferred physical
     custody of Child to D.A., a new kinship foster care provider.

     Following a subsequent permanency [review] hearing . . . on July
     25, 2016, [the trial court] found that [J.C.] had made little
     progress toward reunification, largely due to medical issues, and
     ordered that Child remain in the kinship foster home of D.A. These
     findings and dispositions remained unchanged over the course of
     subsequent permanency hearings on October 31, 2016, February
     6, 2017, May 1, 2017, and July 31, 2017.

     On October 23, 2017, [the trial court] conducted a permanency
     review hearing at which time physical custody of Child [was]
     transferred to G.D., a new kinship foster caregiver.

     Following a permanency review hearing on January 22, 2018, [the
     trial court] permitted Child to have unsupervised day visits with
     his biological father, M.K., whose parental rights to Child had been
     terminated when Child was still an infant. [CYF] filed a motion for
     consideration of M.K.’s criminal record on February 15, 2018,
     given the grant of unsupervised visitation. On March 1, 2018,
     [the trial court] granted [CYF’s] motion and after consideration of

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     [M.K.’s] criminal record,     permitted   a   continuation   of   the
     unsupervised visits.

     Following a permanency review hearing on April 16, 2018, [the
     trial court] directed that physical custody of Child remain with
     kinship foster parent G.D., and that the permanency goal of
     placing [C]hild with a relative as a legal custodian remain
     unchanged. [The trial court] additionally permitted continued
     unsupervised day visits between Child and [M.K.], and additionally
     ordered [CYF] to assess [M.K.] as a possible placement resource.

     At a subsequent permanency review hearing on July 9, 2018, after
     determining that Child had expressed a desire to live with [M.K.],
     while physical custody remained with kinship foster parent G.D.,
     [the trial court] continued to permit visits between Child and
     [M.K.], and ordered [CYF] to schedule an interactional evaluation
     with [M.K.]. On August 20, 2018, [the trial court] transferred
     physical custody of Child to biological father M.K., concluding that
     such disposition was better suited to the protection and physical,
     mental and moral welfare of Child.

     On October 19, 2018, the guardian ad litem for Child filed a motion
     for foster care funds requesting that [the trial court] order [CYF]
     to make a referral to an appropriate foster care agency or issue
     unapproved foster care payments to [M.K.] Specifically, the
     guardian ad litem alleged that . . . M.K. had not received any form
     of foster care payments since Child’s placement with him on
     August 20, 2018. The guardian ad litem asserted in the motion
     that it was her understanding that [CYF] was opposed to referring
     . . . M.K. for foster care certification which would allow him to
     become a certified foster parent, that Child wished to remain in
     the care of biological father, and that biological father required
     financial assistance to continue to care for [C]hild. The guardian
     ad litem further contended that it was in Child’s best interests to
     remain with [M.K.] and for [M.K.] to become a certified foster
     parent or receive unapproved foster care payments retroactive to
     August 20, 2018.

Trial Ct. Op., 1/24/19, at 3-6 (some capitalization omitted). The docket and

record do not indicate that CYF filed a response or memorandum of law to the




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J-S23030-19


guardian ad litem’s motion. On November 14, 2018, the trial court held a

hearing on the guardian ad litem’s motion and granted it.

       On November 21, 2018, CYF filed a motion for reconsideration and

supporting memorandum of law.1 In the reconsideration motion, CYF alleges

that on November 14, 2018, it “presented” to the trial court a memorandum

of law in opposition to the guardian ad litem’s motion. CYF’s Mot. for Recons.,

11/21/18, at ¶ 5.       CYF’s memorandum of law asserted that M.K., whose

parental rights to Child were previously terminated, cannot collect foster care

payments for Child. CYF’s Mem. of Law Opposing the Payment of Unapproved

Foster Care, 11/21/18, at 1 (unpaginated).

       CYF filed a timely notice of appeal and a Pa.R.A.P. 1925(b) statement

on December 12, 2018. The trial court subsequently denied CYF’s motion for

reconsideration on December 13, 2018.

       CYF raises the following issue:

____________________________________________


1 CYF filed two duplicative motions for reconsideration on November 21, 2018,
at 10:46 a.m. CYF’s supporting memorandum of law was filed at 10:51 a.m.,
also on November 21, 2018. We note this because the certificate of service
for the memorandum of law states that it was served on the other parties on
November 13, 2018, or one day before the November 14, 2018 hearing. As
noted above, the docket and record do not reflect any such filing on November
13th or 14th, and CYF’s own motion for reconsideration asserts that a
memorandum of law was “presented” to the trial court on November 14, 2018.
Because the trial court did not find CYF waived its arguments by presenting
them for the first time in a motion for reconsideration, we presume that the
trial court considered CYF’s memorandum of law at the November 14, 2018
hearing.




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       Whether the trial court abused its discretion and/or erred as a
       matter of law by ordering unapproved foster care payments when
       there was no showing that biological father, whose parental rights
       had been previously terminated, was in financial need of such
       assistance and/or could qualify for such assistance through federal
       or state funding?

CYF’s Brief at 4.2

       In support of its claim, CYF raises three arguments. First, CYF initially

acknowledges that M.K. is Child’s biological father. Id. at 10. CYF argues

that because the trial court had terminated M.K.’s parental rights shortly after

Child’s birth, M.K. “does not meet the definition of a foster parent” for the

purpose of receiving foster care payments. Id. In support, CYF cites to the

Pennsylvania Code,3 but concedes the trial court is not bound by it. Id. CYF

maintains, however, that “to pay foster care payments to a biological parent

would be fiscally irresponsible and in direct contravention of public policy as

well as the law.”4 Id.

____________________________________________


2 Child’s adoptive father, J.C., and the guardian ad litem for Child filed
appellate briefs in support of payments, but M.K. did not.
3 CYF cites to 55 Pa. Code § 3700.5, which sets forth the requirements for
waiving a provision of Chapter 3700, which lists regulations governing foster
parents. CYF’s Brief at 10. CYF emphasizes that 55 Pa. Code § 3700.5(b)(4)
states that any waiver must “not violate or condone noncompliance with
Federal statutes and regulations or State statutes and regulations other than
the requirement of this chapter for which the waiver is approved.” Id. at 10
(quoting 55 Pa. Code § 3700.5(b)). CYF, however, did not identify any
particular statute or regulation that was violated. Regardless, we explain
below why Section 3700 does not support CYF’s position.
4As noted above, CYF’s brief did not identify any particular law that the trial
court’s order contravened. See generally CYF’s Brief at 10-12.


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J-S23030-19


        Our standard of review in dependency cases is well-settled:

        [W]e must accept the facts as found by the trial court unless they
        are not supported by the record. Although bound by the facts, we
        are not bound by the trial court’s inferences, deductions, and
        conclusions therefrom; we must exercise our independent
        judgment in reviewing the court’s determination, as opposed to
        its findings of fact, and must order whatever right and justice
        dictate. We review for abuse of discretion. Our scope of review,
        accordingly, is of the broadest possible nature. It is this Court’s
        responsibility to ensure that the record represents a
        comprehensive inquiry and that the hearing judge has applied the
        appropriate legal principles to that record. Nevertheless, we
        accord great weight to the court’s fact-finding function because
        the court is in the best position to observe and rule on the
        credibility of the parties and witnesses.

In re W.M., 41 A.3d 618, 622 (Pa. Super. 2012) (citation omitted).

        The federal Adoption Assistance and Child Welfare Act of 1980

(AACWA)5 “provides that States will be reimbursed for a percentage of foster

care and adoption assistance payments when the State satisfies the

[AACWA’s] requirements.”6           Id. at 623-24.   Pennsylvania satisfied the

____________________________________________


542 U.S.C. §§ 670-679c. According to the W.M. Court, the Adoption and Safe
Families Act of 1997 (ASFA) amended the AACWA to emphasize the health
and welfare of the child. W.M., 41 A.3d at 623 n.2. The ASFA and AACWA
are incorporated in Title IV-E of the Social Security Act.
6   The W.M. Court explained:

        It has been the national, State and local policy for many years
        pursuant to the [AACWA] to remove children from foster
        placement limbo where they know neither a committed parent nor
        can look toward some semblance of a normal family life that is
        legally and emotionally equivalent to a natural family. . . . States
        such as Pennsylvania, which participate in the [AACWA] program,
        are required to make reasonable efforts to return the child to [his



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J-S23030-19


AACWA’s requirements by establishing its Aid to Families with Dependent

Children-Foster Care (AFDC-FC) program.7 Pa. Dep’t of Public Welfare v.

United States, 411 F. Supp. 2d 586, 588-89 (W.D. Pa. 2006).8 “AFDC–FC

benefits cover ‘the cost of food, clothing, shelter, daily supervision, school

supplies, a child’s personal incidentals, liability insurance with respect to a


____________________________________________


       or her] home following foster placement, but failing to accomplish
       this due to the failure of the parent to benefit by such reasonable
       efforts, to move toward termination of parental rights and
       placement of the child through adoption. Foster home drift, one
       of the major failures of the child welfare system, was addressed
       by the federal government by a commitment to permanency
       planning, and mandated by the law of Pennsylvania in its
       participation in [ASFA] (Public Law 105–89, 111, stat. 2119).
       Succinctly, this means that when a child is placed in foster care,
       after reasonable efforts have been made to reestablish the
       biological relationship, the needs and welfare of the child require
       CYS and foster care institutions to work toward termination of
       parental rights, [and] placing the child with adoptive parents. It
       is contemplated this process realistically should be completed
       within 18 months.

W.M., 41 A.3d at 623-24 (citation omitted).
7 It appears that Pennsylvania’s Department of Public Welfare (DPW) enacted
the AFDC-FC program by establishing rules and regulations under 62 P.S. §
703. See 62 P.S. § 703 (stating, DPW “shall make and enforce all rules and
regulations necessary and appropriate to the proper accomplishment of the
child welfare duties”); accord 62 P.S. § 201 (DPW “shall have the power and
its duties shall be . . . to promulgate regulations . . . as may be necessary to
render the Commonwealth eligible for available Federal funds . . . .”).
8Although “federal court decisions do not control the determinations of the
Superior Court,” we may rely on them to the extent we find them persuasive.
See NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa.
Super. 2012) (citation omitted).




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J-S23030-19


child and reasonable travel to the child’s home for visitation.’ 42 U.S.C. §

675(4)(A).” Id. at 589.

        In pertinent part, Section 672(a) of the AACWA states as follows:

        (a) In general

           (1) Eligibility

           Each State with a plan approved under this part shall[9] make
           foster care maintenance payments on behalf of each child who
           has been removed from the home of a relative specified in
           section 606(a)[10] of this title (as in effect on July 16, 1996)
           into foster care if--

              (A) the removal and foster care placement met, and the
              placement continues to meet, the requirements of
              paragraph (2); and
____________________________________________


9When a statute is unambiguous, the term “shall” is mandatory. Driscoll v.
Arena, ___ A.3d ___, 2019 WL 2498935, *3 n.6 (Pa. Super. 2019) (en banc).
10   Section 606(a), as in effect on July 16, 1996, provided as follows:

        (a) The term “dependent child” means a needy child (1) who has
        been deprived of parental support or care by reason of the death,
        continued absence from the home (other than absence occasioned
        solely by reason of the performance of active duty in the
        uniformed services of the United States), or physical or mental
        incapacity of a parent, and who is living with his father, mother,
        grandfather,      grandmother,     brother,   sister,  stepfather,
        stepmother, stepbrother, stepsister, uncle, aunt, first cousin,
        nephew, or niece, in a place of residence maintained by one or
        more of such relatives as his or their own home, and (2) who is
        (A) under the age of eighteen, or (B) at the option of the State,
        under the age of nineteen and a full-time student in a secondary
        school (or in the equivalent level of vocational or technical
        training), if, before he attains age nineteen, he may reasonably
        be expected to complete the program of such secondary school
        (or such training);

42 U.S.C. § 606(a) (1996).


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J-S23030-19



          (B) the child, while in the home, would have met the AFDC
          eligibility requirement of paragraph (3).

       (2) Removal and foster care placement requirements

       The removal and foster care placement of a child meet the
       requirements of this paragraph if--

          (A) the removal and foster care placement are in accordance
          with--

              (i) a voluntary placement agreement entered into by a
              parent or legal guardian of the child who is the relative
              referred to in paragraph (1); or

              (ii) a judicial determination to the effect that continuation
              in the home from which removed would be contrary to
              the welfare of the child and that reasonable efforts of the
              type described in section 671(a)(15) of this title for a
              child have been made; . . .

                                 *     *    *

       (3) AFDC eligibility requirement

          (A) In general

          A child in the home referred to in paragraph (1) would have
          met the AFDC eligibility requirement of this paragraph if the
          child--

              (i) would have received aid under the State plan
              approved under section 602 of this title (as in effect on
              July 16, 1996) in the home, in or for the month in which
              the agreement was entered into or court proceedings
              leading to the determination referred to in paragraph
              (2)(A)(ii) of this subsection were initiated; or . . .

                                 *     *    *




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J-S23030-19


        (b) Additional qualifications

        Foster care maintenance payments may be made under this part
        only on behalf of a child described in subsection (a) of this section
        who is--

           (1) in the foster family home of an individual, whether the
           payments therefor are made to such individual or to a public or
           private child-placement or child-care agency, or . . .

42 U.S.C. § 672(a)-(b) (emphasis added).           Section 672(c) defines “foster

family home” as “a foster family home for children which is licensed by the

State in which it is situated or has been approved, by the agency of such State

having responsibility for licensing homes of this type, as meeting the

standards established for such licensing . . . .” 42 U.S.C. § 672(c).

        In sum, the Court has construed the statute as follows:

        the plain language of section 672 states that in order for a child
        to qualify for foster care maintenance payments, the removal from
        the home and placement in foster care must occur by either of
        two ways: a voluntary placement agreement by a parent or legal
        guardian or a judicial determination that a child’s continued
        presence in the home would be contrary to his/her welfare.

W.M., 41 A.3d at 626 (emphasis in original and footnote and citation

omitted).11

        In Miller v. Youakim, 440 U.S. 125 (1979), the United States Supreme

Court discussed the language and intent of the AACWA in resolving whether

Illinois was required to make foster care payments to “children who reside



____________________________________________


11   As noted above, CYF has not challenged Child’s placement with M.K.


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J-S23030-19


with relatives.”    Miller, 440 U.S. at 126.       At that time, Illinois’s AFDC-FC

program distinguished between related and unrelated foster parents and

provided payments only to children who lived with unrelated foster parents.

Id. at 128-29. Illinois had placed two children in foster care with their older

sister, Linda Youakim, and her husband (collectively, the Youakims). Id. at

130. Illinois, however, refused to make the foster care payments because the

two children were related to Linda. Id. at 130. The Youakims sued Illinois.

       In resolving the issue, the Miller Court acknowledged the statutory

definition of “foster family home”: “[T]he term ‘foster family home’ means a

foster family home for children which is licensed by the State in which it is

situated or has been approved, by the agency of such State responsible for

licensing homes of this type, as meeting the standards established for such

licensing.” Id. at 135 (quoting the statutory definition of “foster family home”

as set forth in 42 U.S.C. § 608 (1996)).12 Illinois contended that the definition

of “foster family home” excluded homes where the foster parents were related

to the foster children. Id. at 134. The Youakims countered that the definition

of “foster family home” included homes in which the foster parents were

related to the foster children. Id. at 131.




____________________________________________


12The Section 608 definition is identical to the present definition in Section
672.


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J-S23030-19


       The AFDC-FC program, the Miller Court explained, “was designed to

meet the particular needs of all eligible neglected children, whether they are

placed with related or unrelated foster parents.”     Id. at 134 (emphases

added).    The statutory definition of “foster family home,” the Miller Court

held, “[f]ar from excluding related caretakers, use[d] the broadest possible

language when it refers to the homes of foster parents.”          Id. at 135

(emphasis added). The Miller Court continued, “[h]ad Congress intended to

exclude related foster parents from the definition of ‘foster family home,’ it

presumably would have done so explicitly . . . . Instead, the statute plainly

states that a foster family home is the home of any individual licensed or

approved by the State as meeting its licensing requirements . . . .” Id. at

137-38 (emphasis added and footnote omitted). Therefore, the Miller Court

held that Illinois was required to pay foster care payments to the Youakims,

who were related by blood to the foster children.13 Id. at 146.

____________________________________________


13In Pa. Dep’t of Public Welfare, the federal district court accurately
summarized the Miller Court’s additional rationale:

       The [Miller] Court emphasized that the “overriding goal” of the
       AFDC–FC program was to provide the best available care for all
       dependent children removed from their homes because they
       were neglected. The Miller Court also emphasized Congress’
       obvious preference for care of dependent children by relatives, a
       policy underlying the categorical assistance program since its
       inception in 1935. Finally, Miller concluded that:

          The overriding purpose [of AFDC–FC] was to assure that the
          most appropriate substitute care be given to those



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        Initially, to the extent CYF has argued that the trial court’s decision

contravenes public policy, CYF has waived any such argument. CYF failed to

establish a record before the trial court upon which we may identify

Pennsylvania’s public policy addressing foster care payments to biological

parents whose parental rights have been terminated. See generally Weaver

v. Harpster, 975 A.2d 555, 563 (Pa. 2009).14 Absent CYF’s discussion of




____________________________________________


           dependent children so mistreated that a court has ordered
           them removed from their homes. The need for additional
           AFDC–FC resources—both monetary and service related—to
           provide a proper remedial environment for such foster
           children arises from the status of the child as a subject
           of prior neglect . . . .

Pa. Dep’t of Public Welfare, 411 F. Supp. 2d at 595 (emphases in original
and quotation marks and citations omitted).
14   The Weaver Court observed:

        In our judicial system, the power of the courts to declare
        pronouncements of public policy is sharply restricted. Rather, it
        is for the legislature to formulate the public policies of the
        Commonwealth. The right of a court to declare what is or is not
        in accord with public policy exists only when a given policy is so
        obviously for or against public health, safety, morals, or welfare
        that there is a virtual unanimity of opinion in regard to it. Only in
        the clearest of cases may a court make public policy the basis of
        its decision. To determine the public policy of the Commonwealth,
        we examine the precedent within Pennsylvania, looking to our own
        Constitution, court decisions, and statutes promulgated by our
        legislature.

Weaver, 975 A.2d at 563 (citations and quotation marks omitted).




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relevant    authority,    this   Court   is    not   in   a   position   to   identify   the

Commonwealth’s public policy. See id.

       Moreover, CYF has conceded that the trial court is not bound by the

Pennsylvania Code. CYF’s Brief at 10. It follows that the Pennsylvania Code

does not bar the trial court from ordering foster payments to M.K. See In re

Lowry, 484 A.2d 383, 386 (Pa. 1984) (holding that the Pennsylvania Code

does not bind courts authorized by statute to issue orders acting in the child’s

best interests).     Therefore, we need not resolve whether M.K. meets the

definition of a “foster parent” under the Pennsylvania Code.15

       In any event, CYF did not acknowledge that 55 Pa. Code § 3700.4

defines “foster parent” as an “individual responsible for providing foster family

care” to a dependent child. See 55 Pa. Code § 3700.4. Section 3700.4 did

not exclude a person biologically related to the dependent child from the

definition of “foster parent.” See id. It follows that M.K., although biologically

____________________________________________


15 The guardian ad litem’s brief suggested that CYF argued that “M.K. cannot
be a licensed foster home, as he would not qualify for Title IV-E funding.”
Guardian ad litem’s Brief at 12 n.3. The guardian ad litem then argues that
this Court should take judicial notice that M.K. is now a licensed foster home
and is currently receiving Title IV-E funding. Id.

      Initially, we do not construe CYF’s argument as suggesting that M.K.
cannot be a licensed foster home. Regardless, we are reluctant to take judicial
notice of such adjudicative facts because we cannot “accurately and readily
determine[]” their “sources whose accuracy cannot reasonably be
questioned.” See Pa.R.E. 201. Even if CYF had raised such an argument, as
we discussed above, Title IV-E funding does not require an actual license. See
42 U.S.C. § 672(c) (noting funding may be granted to home approved by, but
not necessarily licensed by, appropriate state agency).


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related to Child, qualifies as a “foster parent” under the Pennsylvania Code.

See id.; see also Miller, 440 U.S. at 146.

      CYF, however, has claimed that the trial court’s order violated an

unspecified law or regulation.   CYF’s Brief at 10.   CYF, however, failed to

identify any such law and arguably waived the issue. See In re Whitley, 50

A.3d 203, 209 (Pa. Super. 2012). But even assuming that CYF preserved the

argument, CYF does not argue noncompliance with Section 672(a)(1). See

42 U.S.C. § 672(a)(1). In other words, CYF does not argue that Child was

improperly removed or that M.K. is an inappropriate foster parent. See id.

Rather, CYF argues that M.K. is an inappropriate recipient for foster care

payments.

      The statutory definition of “foster family home” has remained

unchanged since Miller. Compare 42 U.S.C. § 672(c) (defining “foster family

home” as a licensed or approved “foster family home for children”), with

Miller, 440 U.S. at 127 n.1 (quoting identical language). Because the Miller

Court construed the definition of “foster family home” as including any home

in which the foster parents were related by blood to the foster children, it

follows that nothing in Section 672(a)(1) bars M.K., who is biologically related

to Child, from receiving foster care payments. See Miller, 440 U.S. at 137-

38; In re Tameka M., 580 A.2d 750, 755 (Pa. 1990) (holding, “CYS has the

duty to give financial support to dependent children”); In re Lowry, 484 A.2d

at 388 (holding, “the court is guided by the overriding principle of acting ‘to


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provide for the care, protection, and wholesome mental and physical

development of children’” under the Juvenile Act (quoting 42 Pa.C.S. § 6301)).

      We summarize CYF’s second and third arguments together. CYF argues

that the trial court disregarded “that federal, state and local monies were paid

when [CYF] was attempting to reunify [Child] with” M.K., but M.K. was unable

to remedy the factors that led CYF to file a petition to terminate M.K.’s parental

rights. CYF’s Brief at 11. CYF alleges that since M.K.’s parental rights were

terminated, he has not received any financial assistance. Id. But to provide

payment now, CYF claims, “would be a windfall to M.K. [and it] would create

bad precedent wherein parents could abandon their children and have their

rights terminated and then later be paid to care for their own children.” Id.

In sum, CYF argues that because money was spent in an attempt to reunify

Child and M.K. before M.K.’s parental rights were terminated, M.K. should be

barred from receiving financial assistance after his parental rights were

terminated. Id.

      CYF also asserts that “[f]oster care payments are meant to help those

persons who come forward to provide substitute care to children, who are not

biologically their child and to whom they have no fiduciary duty to support.”

Id. CYF notes that upon a showing of financial need, it would provide non-

monetary assistance in the form of food, transportation, and clothing




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J-S23030-19


vouchers. Id. at 11-12. CYF argues that M.K. has not established any such

financial need. Id. at 12.16

        To the extent CYF has claimed that M.K. was required to show financial

need before receiving foster care payments, CYF has not identified any legal

authority for such a proposition. See id. at 11-12. As noted above, Child—

not M.K.—filed the motion to have M.K. receive foster care payments because

it would be in Child’s best interests. See In re Lowry, 484 A.2d at 386. CYF

has not identified any legal authority to support that when a child files such a

motion, it is incumbent upon the foster parent, as recipient of such foster care

payments, to establish financial need.17

        As with CYF’s initial public policy argument, CYF has cited no authority

for the proposition that affirming the trial court’s order would create a

precedent permitting parents to abandon their children, have their parental

rights terminated, and then be paid to care for their own children. See CYF’s

Brief at 11. Without any discussion by CYF, this Court cannot hold that foster

care payments intended for Child’s benefit should be withheld from being paid

to M.K., Child’s biological father, whose legal parental rights have been



____________________________________________


16   CYF did not challenge M.K.’s physical custody of Child.
17 Such a position, we note, would shift the focus away from whether such
payments would be in the child’s best interests. See In re Lowry, 484 A.2d
at 386; see also Pa. Dep’t of Public Welfare, 411 F. Supp. 2d at 595.




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terminated a decade ago.18           See generally Weaver, 975 A.2d at 563.

Because CYF has not established the trial court violated the law, we affirm the

order below.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2019




____________________________________________


18 We acknowledge that the purpose of foster care payments is to benefit the
child. See In re Lowry, 484 A.2d at 386. We are reluctant to penalize the
child by withholding such payments because the child happens to be thriving
in the home of a biological parent whose parental rights have been terminated.


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