No. 2633 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Juvenile Division, of Tioga County at No. 173 Juv. 1980.
James T. Rague, Wellsboro, for appellant.
William A. Hebe, Wellsboro, for Children's Services, participating party.
Earl W. Tabor, Wellsboro, for Guardian, participating party.
Hester, Cavanaugh and DiSalle,*fn* JJ. DiSalle, J., files dissenting statement.
[ 294 Pa. Super. Page 419]
This appeal is taken from an order of the lower court granting custody of Ryan Michael C., the infant son of appellants Michael S. and Marjorie C. S., to Children's Services of Tioga County. Because the order was not based on a finding of dependency as required by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., we vacate the order and remand the case.
On October 10, 1980, Children's Services of Tioga County filed a petition pursuant to the Juvenile Act alleging that Ryan Michael, born May 2, 1980, was a dependent child. A brief hearing on the petition was held on October 13, 1980. At the conclusion of that hearing, the judge entered the following order.
And now, October 13, 1980, custody of the above minor is awarded to Children's Services of Tioga County until further Order of Court.
No adjudication of dependency was made. We have repeatedly held that no court may interfere with a parent's custody of his or her child absent a finding of dependency and full compliance with the Juvenile Act procedures. In Re A. E. M., 288 Pa. Super. 284, 431 A.2d 1049 (1981); Hemenway v. Hemenway, 284 Pa. Super. 481, 426 A.2d 149 (1981); In re Frank, 283 Pa. Super. 229, 423 A.2d 1229 (1980);
[ 294 Pa. Super. Page 420]
is not made, custody must be given to the parents immediately.
If the court concludes that a child is dependent, it proceeds to the second stage of the hearing, the dispositional phase. Even a child who has been adjudicated dependent may not be separated from its parents unless the evidence presented establishes that such a separation is "clearly necessary." Furthermore, "clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with [his or her] family are unfeasible." In The Interest of K. B., supra, 276 Pa. Super. at 393, 419 A.2d at ...