No. 436 Philadelphia, 1981, No. 635 Philadelphia, 1981, No. 731 Philadelphia, 1981, No. 740 Philadelphia, 1981, Appeals from Orders of the Court of Common Pleas, Civil Division, of Potter County, at Nos. 47 of 1981 and 10 of 1974.
Before Hester, McEWEN and Shertz, JJ. Shertz, J., did not participate in the consideration or review of this case.
Presently before the court are the consolidated appeals of the Potter County Children & Youth Services (hereinafter Potter County) and James Hurlburt from the order of the lower court dated February 17, 1981; as well as the consolidated appeals of the same appellants (Potter County and James Hurlburt) from the Order of the lower court dated February 26, 1981. We affirm the Orders of the lower court.
The order of February 17, 1981 provides:
"And now, this 17th day of February, 1981, it is hereby directed that the writ of habeas corpus issue, and further that the custody of the children who are thus subject to these proceedings shall be remanded to the natural parents and Petitioners herein within seventy-two (72) hours of the date hereof, viz. Thursday, February 19th, 1981 at 12:00 noon. Further the Court Order of April 9th, 1974 filed at No. 10 Juvenile Docket, 1974 is hereby declared to be void. Per Curiam, Harold B. Fink, President Judge, 55th Judicial District."
The order of February 26, 1981 provides:
"And now, this 26th day of February, 1981, this Court's Order in the above captioned matter is hereby amended to read as follows: 'And now, this 26th day of February, 1981, pursuant to Potter County Children & Youth Services Petition for Review, and argument held thereon, Counsel for the Respondents Motion to Dismiss in the Nature of a Demurrer is hereby granted.' Per Curiam, Harold B. Fink, President Judge, 55th Judicial District."
On February 3, 1981, appellees Duane Hurlburt and Gloria Hurlburt, his wife, filed an Amended Petition for Writ of Habeas Corpus wherein they alleged that they are the natural parents of Sue Hamilton, born September 13, 1967, Duane Hamilton, born March 22, 1970, Marian Hurlburt, born May 20, 1971 and James Hurlburt, born March 13, 1974. Further, they alleged that on April 9, 1974, the then Acting Director of the Potter County Children and Youth Services filed a Petition alleging that the above named four minor children were deprived. In addition, appellees contended that same day, April 9, 1974, wihtout a hearing and without written findings of fact, the court temporarily placed the four minor children in the custody of the Potter County Child Welfare Services. The April 9, 1974 Order of Court provides:
"AND NOW, this 9th day of April, 1974, after consideration of the foregoing Petition, it is hereby ORDERED and DECREED that temporary placement of the above-named deprived children shall be in the Child Welfare Services of Potter County until such time as a hearing may be had after notice to all interested parties. PER CURIAM, Walter Pierre Wells, JUDGE."
The appellees further claim that they were never given notice or an opportunity to be heard or, in fact, no further hearings were ever held. Moreover, the appellees allege that their four minor children are still in the wrongful possession of the Potter County Welfare Services in violation of the applicable provisions of the Juvenile Act, 42 Pa. C.S.A. 6300 etc., 1976, July 9, P.L. 586, No. 142 § 2, eff. June 27, 1978--Official source Note: Substantially a reenactment of Act of Dec. 6, 1972 (No. 333), § 1 (11 P.S. § 50-101). Specifically, Section 6335 provides in relevant part:
§ 6335. Release or holding of hearing
(a) General rule.--After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention or shelter care shall not be later than ten days after the filing of the petition. If the hearing is not held within such time, the child shall be immediately released from detention or shelter care....
The court shall direct the issuance of a summons to the parents, guardian, or other custodian, a guardian ad litem, and any other persons as appear to the court to be proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition. The summons shall also be directed to the child if he is 14 or more years of age or is alleged to be a delinquent. A copy of the petition shall accompany the summons.
1976, July 9, P.L. 586, No. 142, § 2, eff. June 27, 1978. As amended 1978, April 28, P.L. 202, No. ...