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DUANE HURLBURT AND GLORIA HURLBURT v. POTTER COUNTY CHILDREN AND YOUTH SERVICES (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


February 5, 1982

DUANE HURLBURT AND GLORIA HURLBURT
v.
POTTER COUNTY CHILDREN AND YOUTH SERVICES, APPELLANT; IN RE: SUE HAMILTON, DUANE HAMILTON, MARIAN HURLBURT, JAMES HURLBURT; APPEAL OF: POTTER COUNTY CHILDREN AND YOUTH SERVICES; IN RE: SUE HAMILTON, DUANE HAMILTON, MARIAN HURLBURT, JAMES HURLBURT; APPEAL OF: JAMES HURLBURT; DUANE HURLBURT AND GLORIA HURLBURT V. POTTER COUNTY CHILDREN AND YOUTH SERVICES; APPEAL OF: JAMES HURLBURT

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.

MEMORANDUM

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. 53, § 29, eff. June 27, 1978.

Official Source Note:

Reenactment of act of December 6, 1972 (No. 333), § 18 (11 P.S. § 50-315).

In addition, Section 6341 provides in relevant part:

§ 6341. Adjudication

(a) General rule.--After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child, or if the petition alleges that the child is delinquent, whether the acts ascribed to the child were committed by him. If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.

(c) Finding of dependency.--If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.

1976, July 9, P.L. 586, No. 142, § 2, eff. June 27, 1978. As amended 1978, April 28, P.L. 202, No. 53, § 29, eff. June 27, 1978.

Official Source Note:

Reenactment of act of December 6, 1972 (No. 333), § 23 (11 P.S. § 50-320).

(Emphasis added).

The Rule issued and on February 17, 1981, a hearing was convened on appellees' Amended Petition. Following much legal preliminary maneuvering, testimony was taken of the appellees Duane and Gloria Hurlburt.

Following the conclusion of testimony, the court made certain Findings of Fact and Conclusions of Law and the appealed-from Order of February 17, 1981. Finding that the appellees, the natural parents of the four minor children, were neither served with a copy of the original 1974 Petition, nor did they ever have any formal legal notice of same; additionally, finding that there was never a hearing prior to the issuance of the April 9, 1974 Order, nor was there ever a hearing held at any time from April of 1974 to the present, the court concluded that the Order of April 9, 1974 was null and void and granted appellees' Amended Petition for Writ of Habeas Corpus, and the four minor children were remanded to the custody of the appellees, their natural parents.

Thereafter, Potter County filed a Petition for Review of the February 17, 1981 Order. In response thereto, appellees filed a Motion to Dismiss. A hearing on said Petition for Review was held on February 20, 1981, following the conclusion of which the court granted appellees' Motion to Dismiss. Thereafter, the court amended the February 20, 1981 Order with the second appealed-from Order dated February 26, 1981 granting appellees' Demurrer to appellant's Petition for Review.

We agree with the lower court. Based upon the unfortunate set of circumstances present in this case, the April 9, 1974 Order was properly declared null and void and of no validity by the lower court. The 1974 Order issued without notice to the natural parents, without hearing, even without the barest allegations of dependency as mandated by the Juvenile Act (supra).

In 1974, no adjudication of dependency was made. We have oft times held a court may not interfere with a natural parent's right to the custody of his or her child absent a finding of dependency and full compliance with the procedures set forth in the Juvenile Act (supra). In Re A.E.M., Pa. Super. , 431 A.2d 1049 (1981); Hemenway v. Hemenway, Pa. Super. , 426 A.2d 149 (1981); In re Frank, Pa. Super. , 423 A.2d 1229 (1980); In re Jackson, 267 Pa. Super. 428, 406 A.2d 1116 (1979); In The Interest of LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976).

Whether or not the court in 1974 could have adjudicated the four minor children dependent, is not the issue properly before us at this time, nor was it properly before the lower court in February of 1981. Neither are we today, nor was the court in February, 1981, charged with the responsibility of finding what is "in the best interests" of the minor children as of that time.

Furthermore, we concur with the actions of the lower court in its February 26, 1981 Order when it granted appellees' Demurrer to the appellant's Petition for Review.

Orders affirmed.

SHERTZ, J., did not participate in the consideration or review of this case.

19820205

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