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S.N.W. D.O.B. 1-24-71. APPEAL J.M.W.-C. (04/16/87)

filed: April 16, 1987.

IN THE INTEREST OF S.N.W. D.O.B. 1-24-71. APPEAL OF J.M.W.-C.


Appeal from Order of the Court of Common Pleas, Juvenile Division, of Centre County, No. 1986-1137.

COUNSEL

Michael J. Bresnahan, State College, for appellant.

Wieand, Olszewski and Tamilia, JJ.

Author: Wieand

[ 362 Pa. Super. Page 296]

In these dependency proceedings brought pursuant to the Juvenile Act,*fn1 the trial court denied a mother's request for the appointment of counsel and required the hearing to proceed without determining whether the mother was indigent and without continuing the hearing to permit her to obtain counsel. After the child had been determined to be dependent and custody had been awarded to the Centre County Children and Youth Services (C.Y.S.), the mother appealed. She contends that the trial court erred when it required her to proceed without counsel. We agree. Therefore, we reverse and remand for further proceedings.

On May 2, 1986, C.Y.S. petitioned the trial court under the Juvenile Act to hold that S.N.W., a juvenile, was dependent. The child had been born to J.M.W-C. on January 24, 1971 and, according to the averments of the petition, had been sexually abused by J.M.W-C. and her husband, the child's stepfather. A hearing on the petition was set for May 5, 1986. On that day, J.M.W-C. appeared without counsel. At the conclusion of the hearing, the court directed that a dispositional hearing be held within ten days and continued custody of S.N.W. in C.Y.S.

J.M.W-C. thereafter filed with the Court Administrator a petition to proceed in forma pauperis, which the Court Administrator denied on May 9, 1986. On May 12, 1986,

[ 362 Pa. Super. Page 297]

J.M.W-C. filed with the court a motion for the appointment of counsel. Prior to the start of the dispositional hearing on May 13, the trial court questioned J.M.W-C. regarding her financial resources and learned that she was unemployed and using money borrowed from her parents to pay living expenses. Her husband, who was on bail to answer charges of child abuse, was about to begin a new job. J.M.W-C. also said that she had been unable to find legal counsel and that she had been advised by Keystone Legal Services to file a petition requesting the court to appoint counsel for her. The trial court, without making any findings regarding indigency, denied appellant's request for counsel and required that the hearing proceed. Appellant was present during the hearing but did not participate therein. The court heard evidence that the child had been sexually abused and was without parental care. Based thereon, the court found that the child was dependent and directed that custody remain with C.Y.S.

Section 6337 of the Juvenile Act provides, in pertinent part, as follows:

Except as otherwise provided under this chapter a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceedings to enable a party to obtain counsel.

42 Pa.C.S. ยง 6337 (emphasis added). This statute makes it eminently clear that appellant was entitled to be represented by counsel at the hearing and to have counsel appointed if she were indigent. The trial court in this case declined to follow the statutory requirement because it believed that the ten day hearing ...


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