          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Burns and                       :
Svetlana Burns, his wife,              :
                   Petitioners         :
                                       :
            v.                         :
                                       :
Department of Human Services,          :   No. 1570 C.D. 2017
                 Respondent            :   Argued: May 7, 2018


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION
BY JUDGE FIZZANO CANNON                    FILED: July 17, 2018



            Robert Burns and Svetlana Burns (together, Petitioners) petition for
review of the October 3, 2017 order of the Department of Human Services, Bureau
of Hearings and Appeals (Department), which adopted, in its entirety, the
Adjudication and Recommendation of the Administrative Law Judge (ALJ),
recommending that Petitioners’ appeal be dismissed for lack of jurisdiction. We
affirm.
            LD is a male child who was born on September 14, 2016. ALJ’s
Findings of Fact (F.F.) No. 1. On October 5, 2016, the Allegheny County Office of
Children, Youth and Families (OCYF) filed an application for emergency protective
custody of LD with the Court of Common Pleas of Allegheny County-Juvenile
Division (Court of Common Pleas). F.F. No. 2. The Court of Common Pleas
granted legal custody of LD to OCYF and later determined LD to be a dependent
child by order dated November 4, 2016. F.F. No. 3. The hospital discharged LD on
October 8, 2016, and OCYF placed LD in foster care in Petitioners’ home. F.F. No.
4. LD remained in Petitioners’ foster care for seven months. F.F. No. 5. On or
about May 12, 2017, the Court of Common Pleas ordered that physical custody of
LD remain with Petitioners and that legal custody remain with OCYF, but it also
granted OCYF the authority to place LD with a relative by agreement. F.F. No. 6;
Court of Common Pleas 5/12/17 Permanency Review Order (P.R. Order),
Supplemental Reproduced Record (S.R.R.) at 5b-6b. The Court of Common Pleas
found that OCYF had been working with the maternal grandmother as a possible
placement for LD. 5/12/17 P.R. Order, S.R.R. at 6b.
             On May 23, 2017, OCYF removed LD from Petitioners’ foster care and
placed LD with his maternal grandmother. F.F. No. 7. On that same day, Petitioners
filed an administrative appeal with the Department challenging the removal of LD
and requesting that LD be returned to their foster care. F.F. No. 8.
             Also on May 23, 2017, Petitioners filed two motions with the Court of
Common Pleas, a motion to stay removal and a motion to intervene. See F.F. No. 9.
The Court of Common Pleas denied the motions, but, on June 2, 2017, held a status
review hearing to consider Petitioners’ evidence regarding LD’s placement. F.F.
No. 10. On June 2, 2017, the Court of Common Pleas issued an order confirming
the placement of LD with his maternal grandmother. F.F. No. 11.
             On May 25, 2017, the Department issued an order to show cause as to
why Petitioners’ appeal with the Department should not be dismissed for lack of
jurisdiction. F.F. No. 13. Petitioners responded, arguing that they lacked advance
written notice, asserting their right to a due process hearing and reiterating their


                                          2
desire for LD to be placed in their home. F.F. No. 14. On August 22, 2017, the
Department conducted an administrative hearing on the issue of its jurisdiction. F.F.
No. 15. At all times relevant to the appeal before the Department, the dependency
case regarding LD had remained open in the Court of Common Pleas. See F.F. No.
12.
             On September 11, 2017, the ALJ issued an Adjudication and
Recommendation.      The ALJ determined that LD’s placement was under the
jurisdiction of the Court of Common Pleas and that the Department was without
authority to issue a contrary order. Adjudication at 4. The ALJ determined that the
appeal was prohibited by 55 Pa. Code § 3700.73(a)(2), which provides: “Foster
parents may appeal the relocation of a child from the foster family except under one
of the following conditions: . . . (2) The removal is initiated by the court. . . .”
Adjudication at 4.
             With respect to Petitioners’ due process argument, the Department
acknowledged that it did not issue a written notice to Petitioners 15 days before LD
was removed from their foster care. Id. at 3. The ALJ noted, however, that the Court
of Common Pleas held a hearing on June 2, 2017 for the purpose of addressing
Petitioners’ argument regarding LD’s placement. Id. at 3-4. The Court of Common
Pleas issued an order following that hearing confirming LD’s placement in the home
of his maternal grandmother. Id. at 4.
             Accordingly, the ALJ recommended that Petitioners’ appeal be
dismissed because the Department lacked jurisdiction and could not grant the relief
sought. Id., ALJ’s Recommendation. On October 3, 2017, the Department issued
its order adopting the ALJ’s Adjudication and Recommendation in its entirety and
dismissing Petitioners’ appeal.


                                         3
                 Petitioners now petition this Court for review of the Department’s
order.1 OCYF has intervened.2
                 Before we address Petitioners’ arguments, we must respond to OCYF’s
argument that this matter is moot. OCYF states that on December 15, 2017, the
Court of Common Pleas entered an order closing LD’s dependency case and granting
LD’s maternal grandmother legal and physical custody of LD. See OCYF’s Brief at
8; S.R.R. at 10b.
                 Appellate courts in this Commonwealth will not decide moot questions.
See In re Gross, 382 A.2d 116, 119 (Pa. 1978). A court will dismiss an appeal as
moot unless an actual case or controversy exists at all stages of the judicial or
administrative process. Luzerne Cty. Children & Youth Servs. v. Dep’t of Pub.
Welfare, 826 A.2d 84, 86 (Pa. Cmwlth. 2003). “[A] legal question can become moot
on appeal as a result of an intervening change in the facts of the case.” See Gross,
382 A.2d at 119. An issue before the court is moot if, in ruling upon the issue, the
court cannot enter an order that has any legal force or effect. Luzerne Cty., 826 A.2d
at 86. However, even where an appeal is technically moot, “where the conduct
complained of is capable of repetition yet likely to evade review, where the case

       1
          This Court’s review in an appeal from an order of the Department is limited to
determining whether constitutional rights were violated, whether any errors of law were committed
and whether any necessary factual findings are supported by substantial evidence. Sanner v. Dep’t
of Pub. Welfare, 878 A.2d 947, 951 (Pa. Cmwlth. 2005). The interpretation of a regulation presents
a purely legal question; thus, this Court’s standard of review is de novo and our scope of review is
plenary. See Allstate Life Ins. Co. v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012) (concerning
appellate court review involving the interpretation of a statute); Northumberland Cty. Children &
Youth Servs. v. Dep’t of Pub. Welfare, 2 A.3d 794, 799 n.5 (Pa. Cmwlth. 2010) (stating that where
a challenge involves a legal question of the proper interpretation of regulations, this Court’s review
is plenary).

       2
           The Department elected not to file a brief.


                                                  4
involves issues important to the public interest or where a party will suffer some
detriment without the court’s decision,” a court may proceed to address the merits
of a claim. Sierra Club v. Pa. Pub. Util. Comm’n, 702 A.2d 1131, 1134 (Pa. Cmwlth.
1997) (en banc), aff’d, 731 A.2d 133 (Pa. 1999).
                This case falls within the exception where the conduct complained of
is capable of repetition yet likely to evade review. Therefore, we will address the
merits.
                Petitioners argue that they were denied due process when LD was
removed from their care essentially without notice and a meaningful opportunity to
be heard and without being afforded the appeal process they claim is guaranteed to
them pursuant to 55 Pa. Code § 3700.73.3 Petitioners argue that the Department
erred and abused its discretion in determining that it lacked jurisdiction to hear


       3
           55 Pa. Code § 3700.73(a) provides:

                (a) Foster parents may appeal the relocation of a child from the
                    foster family except under one of the following conditions:

                   (1) The child has been with the foster family less than 6 months.

                   (2) The removal is initiated by the court.

                   (3) The removal is to return the child to his parents.

                   (4) The removal is to place the child for adoption.

                   (5) An investigation of a report of alleged child abuse indicates
                       the need for protective custody removal to protect the child
                       from further serious physical or mental injury, sexual abuse
                       or serious physical neglect as defined in Chapter 3490
                       (relating to protective services).

55 Pa. Code § 3700.73(a).



                                                  5
Petitioners’ appeal. Petitioners point out that, pursuant to 55 Pa. Code § 3700.73,
foster parents may appeal the relocation of a child from the foster home except in
five enumerated circumstances; they contend none of those exceptions apply here.
The Department, however, ruled that one of the five exceptions applied, in particular,
the exception that the removal was initiated by the court per 55 Pa. Code §
3700.73(a)(2).        Petitioners disagree and maintain that the Department’s
determination is against the weight of the evidence because LD’s removal from the
foster home was “initiated” by OCYF, not the Court of Common Pleas. Petitioners
argue that OCYF initiated the request to have LD declared dependent and then,
ultimately, to remove LD from the foster home. Petitioners assert that the Court of
Common Pleas only responded to OCYF’s request to have LD removed upon
agreement of the parties.4
               Petitioners also argue that the Department erred in determining that it
lacked jurisdiction because the Court of Common Pleas had jurisdiction with regard
to the dependency of LD and could not grant the relief sought. Petitioners maintain
that foster parents come into existence only because a court of common pleas has
jurisdiction and, pursuant to that jurisdiction, has found a child to be dependent.
Petitioners’ Brief at 12. Petitioners argue that all five exceptions under 55 Pa. Code
§ 3700.73 presume the Court of Common Pleas already has jurisdiction.5 Petitioners

       4
         Petitioners point out that the Court of Common Pleas stated in an order dated June 21,
2017 that “the problems displayed by the child were the result of [O]CYF’s hasty decision to place
[LD] with Maternal Grandmother …[,]” and argue this statement shows that OCYF initiated the
removal. Petitioners’ Brief at 16-17; App. B., Court of Common Pleas Status Review Order at 2.
OCYF’s determination that LD should be placed with the grandmother is not dispositive and, as
will be explained, does not mean that OCYF initiated the removal.

       5
       Petitioners argue that the Department misinterpreted 55 Pa. Code § 3700.73, because the
Department stated, “[t]his case falls within one of the exceptions listed in 55 Pa. Code § 3700.73(a)


                                                 6
maintain that Chapter 37 of Title 55 of the Pennsylvania Code is derived from the
Juvenile Act6 so the concurrent jurisdiction was known and contemplated when the
appeal procedure in the Pennsylvania Code was written. Petitioners point out that
the “agreement” did not involve them because they lacked standing in the Court of
Common Pleas to participate as a party.7 Petitioners argue, therefore, that the
reasoning applied by the Department effectively eliminates all appeals by foster
parents.
                Juvenile Act
                The provisions of the Juvenile Act apply to proceedings in which a
child is alleged to be dependent. Sanner v. Dep’t of Pub. Welfare, 878 A.2d 947,
952 (Pa. Cmwlth. 2005); see 42 Pa. C.S. § 6303(a)(1). “The [Juvenile] Act also
clearly envisions the continuing supervision over a dependent child, and one alleged

barring the instant appeal because the current placement of LD is under the jurisdiction of the
[Court of Common Pleas].” Petitioners’ Brief at 8 (citing Adjudication at 2). Petitioners point out
that none of the five exceptions to the Department’s jurisdiction enumerated in 55 Pa. Code §
3700.73(a) excludes instances where a dependency case is “under the jurisdiction” of a court of
common pleas. Petitioners’ Brief at 8-9. We agree that there is no such exception enumerated.
See 55 Pa. Code § 3700.73(a). In its Adjudication, the Department cited 55 Pa. Code §
3700.73(a)(2) (concerning a removal initiated by the court) and also discussed the Court of
Common Pleas’ jurisdiction. While the Department may have conflated the two concepts, the
Department’s reasoning, regarding its lack of authority to modify a plan approved by the Court of
Common Pleas, and result are correct, as will be discussed.

       6
           42 Pa. C.S. §§ 6301-6375.

       7
          Petitioners’ Brief at 18; see 42 Pa. C.S. § 6336.1(a) (stating that the court of common
pleas shall provide to the child’s foster parent notice and an opportunity to be heard at any hearing
conducted under the Juvenile Act but that such does not give the foster parent legal standing in the
matter being heard by the court); In re G.C., 735 A.2d 1226, 1228 (Pa. 1999) (stating that foster
parents lack standing in custody proceedings); In re J.F., 27 A.3d 1017, 1021 (Pa. Super. 2011)
(stating that the Juvenile Act is clear that the foster parent does not have standing to participate as
a party in the dependency proceeding).



                                                  7
to be dependent, until the court concludes the child is no longer dependent.” Sanner,
878 A.2d at 952 (citing 42 Pa. C.S. § 6351). “‘The [court of common pleas] Juvenile
Court maintains a continuing plenary jurisdiction in dependency cases . . . and has
the power to review the circumstances of dependent juveniles . . . .’” In re R.P., 956
A.2d 449, 456 (Pa. Super. 2008) (emphasis in original) (quoting In re Tameka M.,
580 A.2d 750, 752 (Pa. 1990)). The Department “has no authority or jurisdiction to
alter services that a supervising common pleas court has dictated as a result of
reviewing allegations of, or a finding of, dependency.” Sanner, 878 A.2d at 952.8
Where a court of common pleas approves the provisions of a plan in its order, the
Department has no power to modify those terms. Id. at 953; see also Luzerne Cty.,
826 A.2d at 86 (stating that “jurisdiction over disputes regarding adoption, custody
and the placement of dependent children is vested in the courts of common pleas[]”
and that the Department “has no authority to modify a term of a service plan which
has been specifically approved and ordered by a court of competent jurisdiction[]”).9
               Here, the Court of Common Pleas adjudicated LD dependent. See F.F.
No. 3 (stating the Court of Common Pleas granted legal custody of LD to OCYF).

       8
         We acknowledge that Sanner addressed therapy services rather than the placement of the
child. Sanner, 878 A.2d at 949. Nonetheless, Sanner is applicable, because it involved a family
service plan and the placement here was also part of a service plan.
        An agency must prepare a service plan for all families receiving services. See 55 Pa. Code
§ 3130.61(a). The service plan must include service objectives for the family. 55 Pa. Code §
3130.61(b)(3). Placement planning is part of the plan/service objective for those children who are
placed outside of their family. See 55 Pa. Code § 3130.61(b)(6)-(7) (concerning placement
amendments and results of placement reviews) & 55 Pa. Code § 3130.67 (relating to placement
planning).

       9
         Although Luzerne County dealt with an adoption, that fact is not enough to distinguish
the case because all adjudicated dependents have a plan subject to periodic review by a court of
common pleas until the court concludes the child is no longer dependent. See 42 Pa. C.S. §
6351(e)(3) (regarding timing for conducting permanency hearings); Sanner.


                                                8
The Court of Common Pleas further ordered that OCYF had permission to place LD
with a relative by agreement and, by subsequent order, confirmed LD’s placement
with the maternal grandmother. See F.F. Nos. 6 & 11. Thus, the Department had
no authority to modify the terms of LD’s plan that had been approved by the Court
of Common Pleas. See Sanner, Luzerne Cty..
             Nonetheless, Petitioners argue they have a right to an administrative
appeal with the Department. In support of their argument, Petitioners rely on In re
G.C., 735 A.2d 1226 (Pa. 1999), quoting our Supreme Court’s statement that it
“wish[ed] to point out that the Legislature has specifically provided foster parents
with the right to administratively appeal the relocation of their foster children.” Id.
at 1231. Petitioners contend, therefore, that “the Pennsylvania Supreme Court has
recognized the right of foster parents to appeal in the within context[,]” and they
seek the relief that the Supreme Court confirmed for them. Petitioners’ Brief at 19.
             G.C. is not controlling, however, as any statements about 55 Pa. Code
§ 3700.73 were dicta. In that case, the issue was whether the foster parents had
standing in the court of common pleas to seek or contest custody of their foster child.
G.C., 735 A.2d at 1232. After concluding that the foster parents lacked standing,
the Supreme Court made the statement above and then simply quoted 55 Pa. Code §
3700.73. The Supreme Court did not engage in an analysis of 55 Pa. Code § 3700.73
or any of its particular provisions. We will do so now.


             55 Pa. Code § 3700.73(a)
             At issue is the interpretation of 55 Pa. Code § 3700.73(a), which
provides in relevant part: “Foster parents may appeal the relocation of a child from
the foster family except under one of the following conditions: . . . (2) The removal


                                          9
is initiated by the court.” 55 Pa. Code § 3700.73(a)(2). Specifically at issue is when
is a removal “initiated by the court[,]” and, in particular, what is the meaning of the
word “initiated.”
             Chapter 37 of Title 55 of the Pennsylvania Code does not define the
term “initiate.” Therefore, we must resort to its common and approved usage.
Section 1903 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1903. The
word “initiate” is defined as: “To begin or set going : make a beginning of : perform
or facilitate the first actions, steps, or stages of.” Webster’s Third New International
Dictionary 1164 (2002).
             We note that prior to July 1, 2011, “the county agency was not obligated
by statute or rule to obtain judicial permission prior to modifying a dependent child’s
placement.” In re J.F., 27 A.3d 1017, 1020 (Pa. Super. 2011). However, on July 1,
2011, Pennsylvania Rule of Juvenile Court Procedure 1606 became effective, and
that rule requires the county agency to seek court permission prior to a change in
placement, except in an emergency when a judge cannot be reached. See Pa.R.J.C.P.
1606(A)(2) (stating that in non-emergent cases, “the county agency shall seek
approval of the court for a change in the child's placement prior to the removal of
the child from the placement by the filing of a motion or a stipulation for
modification of the dispositional order”). Even in emergency situations, however,
the county agency must file a motion by the next business day following the child’s
placement. Pa.R.J.C.P. 1606(A)(1)(c). The regulation at issue here, 55 Pa. Code §
3700.73, was in effect prior to the adoption of Pennsylvania Rule of Juvenile Court
Procedure 1606.      See 12 Pa.B. 3669-71, 3676 (Oct. 9, 1982) (promulgating
regulations effective October 1, 1982); 17 Pa.B. 392, 406 (Jan. 24, 1987) (amending
55 Pa. Code § 3700.73 effective January 24, 1987). Thus, up to the effective date of


                                          10
Pennsylvania Rule of Juvenile Court Procedure 1606, there were circumstances
where a child’s relocation from foster parent care could have occurred without court
initiation. However, as of July 1, 2011, the county agency is required to seek
permission from the court for a change in placement. See Pa.R.J.C.P. 1606.
             Here, LD’s removal from the foster home did not occur until the Court
of Common Pleas issued its order. The fact that the idea to remove LD from the
foster home came from someone other than the Court of Common Pleas or by
agreement of the parties does not mean that the actual removal was initiated by
OCYF.      While OCYF might have initiated the dependency proceedings that
ultimately resulted in LD’s placement and the subsequent removal from Petitioners’
home, the actual removal could not begin, or could not be “initiated,” until the Court
of Common Pleas issued its order.
             We also find this Court’s decision in Newberry v. Department of Public
Welfare (Pa. Cmwlth., No. 1976 C.D. 2009, filed July 14, 2010), to be persuasive.10
In that case, the court of common pleas ordered children and youth services (CYS)
to remove the foster child from the foster home. Id., slip op. at 1-2. The foster parent
filed an appeal with the Department challenging the removal. Id. at 2. CYS filed a
motion to dismiss the appeal for lack of standing, relying on 55 Pa. Code § 3700.73
and stating that the court of common pleas order controlled the matter. Id. at 2. The
Department granted the motion and dismissed the appeal for lack of jurisdiction,
stating that the court of common pleas had assumed jurisdiction by initiating the
removal of the child from the foster home. Id. Before this Court, the foster parent


      10
          While this Court's unreported memorandum opinions may not be cited as binding
precedent, they may be cited for persuasive value. Commonwealth Court Internal Operating
Procedure § 414(a), 210 Pa. Code § 69.414(a).


                                          11
argued that the exceptions to the foster parent’s right to file an appeal under 55 Pa.
Code § 3700.73(a) were not applicable, in particular, because “the removal was not
initiated by the court, but by a CYS employee . . . .”11 This Court disagreed and
affirmed the Department. Newberry, slip op. at 4.
              Accordingly, we conclude that LD’s removal was “initiated” by the
Court of Common Pleas. Therefore, the removal falls within the exception in
subsection (a)(2) of 55 Pa. Code § 3700.73, and consequently, Petitioners are not
entitled to file an appeal of LD’s relocation with the Department. See 55 Pa. Code
§ 3700.73(a)(2).
              Lastly, we address Petitioners’ argument that they did not receive
timely written notice of the removal and that LD should have remained with them
pending their appeal. 55 Pa. Code § 3700.73(b) provides that the agency (OCYF)
“shall inform foster parents in writing that they may appeal the relocation of a child
in accordance with subsection (a) at least 15 days prior to the relocation of the child.”
The Department admitted that it did not give Petitioners 15 days’ written notice. See
Adjudication at 3. However, as discussed above, Petitioners were not entitled to
appeal the relocation of LD in accordance with subsection (a) of 55 Pa. Code §
3700.73. Consequently, OCYF was not required to give Petitioners 15 days’ written
notice, nor were Petitioners entitled to have LD remain with them pending their
improper appeal. See Martz v. Dep’t of Pub. Welfare, Adams Cty. Child & Youth
Servs., 536 A.2d 496, 497 (Pa. Cmwlth. 1988) (stating that it is only where the foster
parent has a right to appeal the relocation of the child that the child must remain in
the foster home pending a decision on appeal).

       11
          Petitioner’s brief in Newberry v. Dep’t of Pub. Welfare (Pa. Cmwlth., No. 1976 C.D.
2009), available at 2010 WL 4735789 at *6 (emphasis in original).


                                             12
             Accordingly, for the foregoing reasons, we affirm the Department’s
order dismissing Petitioners’ appeal for lack of jurisdiction.




                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




Judge McCullough did not participate in the decision of this case




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Burns and                      :
Svetlana Burns, his wife,             :
                   Petitioners        :
                                      :
            v.                        :
                                      :
Department of Human Services,         :   No. 1570 C.D. 2017
                 Respondent           :



                                 ORDER


            AND NOW, this 17th day of July, 2018, the October 3, 2017 order of
the Department of Human Services, Bureau of Hearings and Appeals, is
AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
