No. 2939 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Monroe County, Civil Action, No. 1736 N.C. of 1980.
William K. Sayer, Stroudsburg, for appellant.
Michael R. Muth, Stroudsburg, for appellees.
Richard E. Deetz, Stroudsburg, submitted a brief on behalf of Children's Bureau, participating party.
John B. Dunn, Stroudsburg, for William M., participating party.
Montemuro, Hoffman and Van der Voort, JJ.
[ 288 Pa. Super. Page 285]
Appellant contends that the lower court erred in awarding custody of three of her children to the Children's Bureau of Monroe County because the Children's Bureau failed to establish that the children were "dependent" as defined by the Juvenile Act.*fn1 For the reasons which follow, we vacate the order of the court below and remand for further proceedings.
On August 11, 1980, the Children's Bureau filed a petition pursuant to the Juvenile Act in which it alleged that A.E.M., J.J.M., and S.L.M., then ages 12, 11, and 9 respectively, were dependent children because their natural parents, appellant and her husband, were "unable to provide the care and
[ 288 Pa. Super. Page 286]
control for the aforesaid children necessary for their physical, mental and emotional health." At that time, the children were residing with their father in East Stroudsburg, Pennsylvania, and appellant was residing with a fourth child in Fayetteville, North Carolina. The petition averred that: the residence in which the children were living was overcrowded and lacked running water and adequate sewage facilities; the father left the children in the supervision of an unsuitable person and had previously left them completely unsupervised while he was at work; the children had previously lived with their father in a different residence under similar conditions; and during the previous winter the father had not adequately clothed the children. On August 26, 1980, the Children's Bureau filed a petition seeking temporary protective custody of the children on the ground that their living conditions had deteriorated. The lower court granted the petition and held a hearing on August 29 at which the father agreed that the Children's Bureau should retain custody of the children until the hearing on the dependency petition, which had been scheduled for September 10. At the September 10 hearing, appellant's attorney informed the court that appellant opposed the Children's Bureau's dependency petition and that she wanted to obtain custody of the three children. Without taking any testimony, the court continued the hearing and directed the Children's Bureau "to make an investigation of any proposed home that [appellant] wishes to advise them of through the local agency in North Carolina."*fn2
On November 13, 1980, the lower court held a hearing at which appellant was the only witness. She testified that her husband left North Carolina with the three children in November of 1977. She subsequently learned that they were living in the Stroudsburg area. She did not see the children again until the September ...