In re J.B. caused the Pennsylvania Superior Court to determine whether — in the course of dependency proceedings — a court must hold an evidentiary hearing before ordering the transfer of durable legal and physical custody to a ready, willing and able non-custodial parent. Here, DHS received an Emergency Order of Protective Custody and removed the child from her mother’s care. The father attended the shelter care hearing the following day. He was eventually granted custody of the child while DHS filed a dependency petition under the Juvenile Act, 42 Pa. C.S.A. ยง 6301 et seq. At the dependency hearing, all parties agreed to a continuance. Still, the father asked for the dependency petition to be terminated because there were no allegations against him, and he now had custody of the child. DHS agreed, but the mother objected to doing so without a hearing. The Orphans’ Court agreed with the father and dismissed the dependency petition, granted him full physical and legal custody. The Superior Court reversed, holding “that a trial court can only transfer durable legal and physical custody to a ready, willing and able non-custodial parent in a dependency proceeding after the court has held an evidentiary hearing and found, based on that evidence, that the custodial parent is unable to provide proper parental care and control to the child by clear and convincing evidence.”
