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MICHAEL Y. (08/17/87)

filed: August 17, 1987.

IN THE INTEREST OF MICHAEL Y., A JUVENILE. APPEAL OF GRACE E.Y.


Appeal from the Order entered November 6, 1986 in the Court of Common Pleas of Clinton County, Juvenile, No. 39-86.

COUNSEL

Craig P. Miller, Lock Haven, for appellant.

Stephen C. Smith, Lock Haven, for appellee.

Wieand, Beck and Cercone, JJ. Wieand, J., concurs in the result.

Author: Beck

[ 365 Pa. Super. Page 490]

Michael Y., a fourteen-year old boy, lived with his great-grandmother Mrs. Grace Y. all of his life. In this appeal, appellant Grace Y. challenges the trial court's adjudication that Michael is a dependent child and the court's disposition of Michael, which placed custody with his aunt, Bonnie Y.

On September 18, 1986, appellee Clinton County Children and Youth Agency ("Agency") petitioned the trial court to declare Michael a dependent child pursuant to 42 Pa.Cons.Stat.Ann. § 6302,*fn1 on the basis of Michael's absences from

[ 365 Pa. Super. Page 491]

    school and his arrest for growing marijuana in his room. At a dependency hearing on September 23, 1986, counsel for Michael Y. and the Agency entered into a stipulation that was adopted by the court as its order. The order provided in relevant part:

And now, September 23, 1986, this matter having been scheduled for a dependency hearing this date and the parties appearing in open court and pursuant to stipulation and agreement arrived at in open court, it is hereby ordered that the Juvenile, Michael [Y.] born February 15, 1973, be adjudicated as a dependent child with legal custody to be transferred to the Petitioner, Clinton County Children and Youth Social Services Agency, with physical custody to remain with the Juvenile's great-grandmother, Grace [Y.] of [address] for a period not to exceed ten days, pending negotiations with Petitioner [Agency] for placement of the Juvenile with a relative. In the event such negotiations are unsuccessful, physical custody shall be transferred to Petitioner for foster care placement with a disposition hearing to be scheduled as required by law.

Appellant was present at the hearing. However, she did not join in the stipulation, nor was she represented by counsel at this proceeding. Shortly thereafter, appellant obtained counsel and filed a motion for reconsideration. She claimed that at the dependency hearing she did not understand the legal significance of the proceeding, the meaning of certain terms used at the hearing, and the fact that she was entitled to court-appointed counsel. She further asserted that she neither consented to nor agreed with the adjudication that Michael was dependent. She stated she was prepared to present evidence that Michael's absences from school had been due to Michael's attendance at his mother's funeral and behavior problems caused by the death of his mother. Nevertheless, the court denied reconsideration.

[ 365 Pa. Super. Page 492]

Following a disposition hearing on November 3, 1986, the court ruled that it was in Michael's best interest to be placed with his aunt, Bonnie Y., and awarded legal and physical custody of Michael to her. This timely appeal followed.

On appeal, appellant contends that the trial court erred: (1) in finding Michael to be dependent; (2) in proceeding with the dependency hearing while appellant was unrepresented; and (3) in placing Michael with his aunt.

We find that the trial court erred in failing to make an independent adjudication of Michael's dependency as required by 42 Pa.Cons.Stat.Ann. § 6341, and in proceeding with the dependency hearing without first procuring from appellant an effective waiver of her right to counsel. We therefore reverse the order of the trial court awarding custody of ...


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