Opinion
No. 1208 C.D. 2013
01-06-2014
William Ramer, Petitioner v. Department of Public Welfare, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
William Ramer (Ramer), pro se, petitions for review of an order of the Department of Public Welfare, Bureau of Hearings and Appeals (DPW), affirming the recommendation of an Administrative Law Judge (ALJ) to dismiss his administrative appeal of correspondence issued by Northumberland County Children and Youth Services (CYS) for lack of jurisdiction. For the reasons that follow, we dismiss Ramer's petition for review as moot.
On March 28, 2012, Ramer's grandchildren were adjudicated dependent. Prior to the dependency adjudication, CYS began searching for willing and able family members to provide an appropriate out-of-home placement for the children. By letter dated March 22, 2012, CYS notified Ramer and his wife, Evon Ramer (collectively, the Ramers), that it was unable to consider their request to become a licensed kinship foster home. That letter provides, in relevant part:
Section 1303 of the Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §1303, relating to the Kinship Care Program, provides, in relevant part:
(a) Establishment of program.--The Kinship Care Program is established in the department.
(a.1) Relative notification.--Except in situations of family or domestic violence, the county agency shall exercise due diligence to identify and notify all grandparents and other adult relatives to the fifth degree of consanguinity or affinity to the parent or stepparent of a dependent child within 30 days of the child's removal from the child's home when temporary legal and physical custody has been transferred to the county agency. The notice must explain all of the following:
(1) Any options under Federal and State law available to the relative to participate in the care and placement of the child, including any options that would be lost by failing to respond to the notice.
(2) The requirements to become a foster parent, permanent legal custodian or adoptive parent.
(3) The additional supports that are available for children removed from the child's home.
(b) Placement of Children.--If a child has been removed from the child's home under a voluntary placement agreement or is in the legal custody of the county agency, the county agency shall give first consideration to placement with relatives or kin. The county agency shall document that an attempt was made to place the child with a relative or kin. If the child is not placed with a relative or kin, the agency shall document the reason why such placement was not possible.
The record is unclear as to what prompted CYS to send the March 22, 2012 denial letter to the Ramers. While the Ramers may not have submitted a formal application to be licensed as a kinship foster home as of March 22, 2012, they clearly had to have made some type of request to CYS in order to be considered for such licensure. In fact, the letter at issue in this case repeatedly references their "request" to become a kinship foster home.
We regret to inform you that our Agency is unable to consider your request to become a licensed kinship foster home for your grandsons ... After reviewing your history with our agency, including detailed dictation, we do not feel that we would be able to approve and license your home for kinship.(Certified Record (C.R.) at 3, Exhibit A-2) (emphasis added). The letter did not provide for any appeal rights. On March 21, 2013, the Ramers submitted a request to DPW to appeal CYS's March 22, 2012 correspondence. On May 30, 2013, DPW held a telephone hearing before an ALJ to determine the timeliness of the Ramers' appeal.
At the hearing, Evon Ramer testified that the Ramers were not informed of any appeal rights with respect to CYS' March 22, 2012 letter. She further testified that she attempted to appeal the kinship denial several times but was refused. Meghan Weaver (Weaver), Discharge Family Supervisor for CYS, testified that the agency is required to consider relatives for placement and initially considered the Ramers but ultimately decided not to further consider them based upon their extensive history with CYS. Weaver explained that there are no appeal rights related to the initial consideration phase. She testified that this case "never progressed beyond that consideration phase" because, although the Ramers "probably discussed...and expressed their interest" in becoming a kinship foster home, they had not submitted a formal application to do so at the time of the March 22, 2012 letter. (May 30, 2013 Hearing Transcript at 29-32).
In response to Weaver's testimony that the Ramers had not filed an application, Evon Ramer testified that they did file an application in March 2013.
The ALJ determined that because the March 22, 2012 letter did not provide appeal rights or a time frame in which to file an appeal, the Ramers' March 21, 2013 appeal was timely filed. However, finding Weaver's testimony credible, the ALJ concluded that the Ramers had not filed an application to be a kinship foster home at the time of the March 22, 2012 letter and, therefore, that DPW lacked jurisdiction over the matter. By order dated July 1, 2013, DPW adopted the ALJ's recommendation in its entirety. This appeal by Ramer followed, in which he argues that DPW's decision to dismiss his appeal for lack of jurisdiction denied him due process because he has a fundamental right to be heard on the merits of the appeal. In response, DPW alleges that the March 22, 2012 letter does not constitute an adjudication because it is not a final order affecting any of the Ramers' rights and, therefore, may not be appealed.
The Ramers also timely filed a request for reconsideration by the Secretary of Public Welfare which was denied on August 7, 2013.
Our review is limited to determining whether the necessary findings are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights have been violated. Burch v. Department of Public Welfare, 815 A.2d 1143, 1145 n.2 (Pa. Cmwlth. 2002).
Section 504 of the Administrative Agency Law (Law), 2 Pa. C.S. §504, provides, in relevant part, that "[n]o adjudication of an agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard." (Emphasis added). Section 101 of the Law, 2 Pa. C.S. §101, defines "adjudication" as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." (Emphasis added.) --------
Before the ALJ, CYS' representative testified that in assessing potential placements, there is an initial "consideration phase" from which there are no appeal rights, followed by a separate determination that occurs after the completion of a home study, training and submission of documentation from which there are appeal rights. DPW contends that the March 22, 2012 letter is not an adjudication but just "correspondence" that affects no rights. While that all may be true, the March 22, 2012 letter provides no indication whatsoever that the denial is merely a preliminary determination or that despite the preliminary assessment of ineligibility, the Ramers could still file a formal application to become a kinship foster home. The letter only states repeatedly that CYS does not approve the Ramers as a kinship foster home. When a determination reads like this one, we place an individual in a quandary of not knowing whether he or she has to appeal the order. If, in fact, such a notice is just merely correspondence indicating a preliminary determination of ineligibility, it should explicitly say so and instruct the recipient on how to obtain a final determination on his or her application.
Having said all of that, we need not address whether the letter is or is not a final order because the testimony establishes that the Ramers, in March 2013, filed a formal application to become a kinship foster home for their grandchildren. Within that application, the Ramers have or will obtain the same relief they seek in this appeal - a hearing on whether they can provide for a suitable foster home for their grandchildren - making this appeal moot.
Accordingly, the petition for review is dismissed as moot.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 6th day of January, 2014, William Ramer's petition for review of the order of the Department of Public Welfare, Bureau of Hearings and Appeals, dated July 1, 2013, at Docket No. 028-13-0016, is dismissed as moot.
/s/_________
DAN PELLEGRINI, President Judge