Appeal from the Order entered in the Court of Common Pleas of Blair County, Civil Division, No. 1324 C.P. 1980
David M. Axinn, Erie, for Blair County, appellee.
Paul S. Foreman, Altoona, for Spangler, appellee.
Tamilia, Kelly and Montgomery, JJ.
[ 359 Pa. Super. Page 491]
This is an appeal from an Order placing custody of Betty Gene Helsel with her mother, Betty Spangler, and her maternal grandparents. The Order also directed Betty Spangler to undergo counseling on parenting skills and required supervision of the child by the Welfare Department with periodic reports to the court.
Betty Gene Helsel was born in 1975 to Gene Helsel and Betty Spangler. Frank Helsel, appellant, is the halfbrother of Betty Gene. He was living with his father and Betty Spangler at the time of Betty Gene's birth.
Gene Helsel and Betty Spangler had an unstable relationship which included large periods of time residing apart. Betty Gene remained with her father until his death on July 4, 1980.
Immediately after Gene Helsel's death, a dispute arose between Frank Helsel and Betty Spangler concerning custody of Betty Gene. On July 11, 1980, a juvenile petition apparently was filed*fn1 and an Order issued placing the child with Blair County Children and Youth Services, Inc.
A dependency hearing was held on July 23, 1980 (N.T. 10/27/80).*fn2 On the same day, a Petition for Writ of Habeas Corpus was filed by appellant and the court issued the Writ scheduling a hearing for October 10, 1980. On August 4, 1980, the court issued an Order directing home studies of appellant and Betty Spangler to be completed prior to the October 10 hearing. Hearings were held October 27, 1980 and August 14, 1981. At the October hearing, upon motion of appellant's attorney, the prior testimony of the July 23 hearing was incorporated into the proceedings. On March
[ 359 Pa. Super. Page 49221]
, 1983, the Order, which is the basis of the present appeal, was filed.*fn3 At that time, the child was removed from foster care and placed in the custody of her mother and maternal grandparents.
A review of the record reveals numerous problems which prevent a disposition on the merits of the arguments raised by appellant. The initial difficulty is determining the exact nature of the adjudication made by the court. The Order of March 1983, from which the appeal is taken, specifically states in pertinent part:
Now, this 17th day of March, 1983, the above identified matter having come before this Court on the Petition of Frank E. Helsel for Writ of Habeas Corpus . . . .
Order filed March 21, 1983, Peoples J.
The Opinion prepared by the trial judge states:
From the inception of the litigation in this matter, this Court has consistently regarded the entire proceeding as one relating to a dependency petition filed in the interests of Betty Gene Helsel, a minor child, and not a custody proceeding.
We are thus faced with a discrepancy, for the Order, on its face, is a custody Order resulting from a Habeas Corpus action, yet the trial judge emphatically states it is the result of a dependency determination.
The record, apart from statements by the parties in their briefs, is void of entries as to a dependency determination. Although the filing of a dependency petition is discussed, this petition has not been made part of the record. In addition, the testimony of the July 23, 1980 dependency hearing is not part of the record, in spite of the fact that this testimony was incorporated into the record by the granting of a motion at the October 27, 1980 hearing (N.T. 10/27/80, p. 5).
Determining the nature of the Order is not crucial, however, for whether it is construed as a custody Order resulting from a Habeas ...