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ANITA H. (03/12/86)

filed: March 12, 1986.

IN THE INTEREST OF ANITA H., JAMELL B., FRANK W. APPEAL OF CURTIS B. AND FRANK W., SR.


Appeal from the Order Entered on May 2, 1985, in the Court of Common Pleas of Schuylkill County, Civil Division, at No. 1770 of 1985.

COUNSEL

Thomas Woodrow, Pottsville, for appellants.

Brosky, McEwen and Hester, JJ.

Author: Hester

[ 351 Pa. Super. Page 343]

The issue presented by this case is whether an adjudication of dependency of minor children can be made without first determining whether a non-custodial parent is available to provide proper care and control.

The facts of this case are as follows. Alice H., the mother of the three minor children who are the subjects of this appeal, Anita H., Jamell B., and Frank W., left them and another child, Valerie H., alone in her apartment to visit a neighbor. While she was absent, one child started a fire with a cigarette lighter. The fire resulted in Valerie's death

[ 351 Pa. Super. Page 344]

    and the hospitalization of Frank W.; the remaining two children were unharmed. The mother was charged with and convicted of criminal offenses arising out of the incident and was incarcerated.

On April 19, 1985, a petition was filed by Schuylkill County Children and Youth Services pursuant to the Juvenile Act (hereinafter "Act") alleging that the three surviving children were "dependent children" within the meaning of the Act. See 42 Pa.C.S. § 6302. A hearing was held on May 2, 1985, concerning the allegations in the petition.

Appellants, Curtis B. and Frank W., Sr., are the natural fathers of the children, and appeared at the hearing in an effort to obtain custody of their respective children. The trial judge, noting that home evaluations had not been completed, refused to consider their requests or to permit them to testify.*fn1

An order was issued May 8, 1985, wherein the children were adjudicated dependent and which placed legal custody of the minors in Schuylkill County Children and Youth Services. Physical custody of the children was awarded to Rose Ann Stokes, their maternal grandmother.*fn2 The court further directed that its order "remain in full force and effect until further Order of this Court." Appellants thereafter perfected this appeal.

The Juvenile Act defines a dependent child, in relevant part, as one who "is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals . . . ." 42 Pa.C.S. § 6302. Whether a child is considered to be lacking proper parental care or control encompasses two discrete questions which must be addressed by ...


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