[35 Pa.B. 4561] .
[Continued from previous Web Page]
PART D. PROCEEDINGS IN CASES BEFORE MASTER Rule 1185. Appointment to Cases.
A. Appointment. If necessary to assist the juvenile court judge, the president judge or his or her designee may appoint masters to hear designated dependency matters.
B. Prohibited practice. Masters shall not engage in practice before the juvenile court in the same judicial district where they preside over dependency matters.
Comment Under paragraph (A), the president judge of each judicial district may restrict the classes of cases to be heard by the master, in addition to the restrictions of Rule 1187. See 42 Pa.C.S. § 6305(b) and Rule 1187.
Rule 1187. Authority of Master.
A. No authority. A master shall not have the authority to:
1) preside over:
a) termination of parental rights hearings;
b) adoptions;
c) adjudicatory hearings where aggravated circumstances are alleged;
d) dispositional hearings where removal from the home is contested; and
e) permanency or dispositional review hearings where a goal change is contested by any party;
2) enter orders for emergency or protective custody pursuant to Rules 1200 and 1210;
3) issue warrants; and
4) hear requests for writs of habeas corpus.
B. Right to hearing before judge.
1) Prior to the commencement of any proceeding, the master shall inform all parties of the right to have the matter heard by a judge. If a party objects to having the matter heard by the master, the case shall proceed before the judge.
2) If a party objects to having the matter heard by the master pursuant to paragraph (B)(1), the master or the court's designee for scheduling cases shall immediately schedule a hearing before the judge. The time requirements of these rules shall apply.
Comment A master's authority in limited under this rule. To implement this rule, Rule 1800 suspends 42 Pa.C.S. § 6305(b) only to the extent that masters may not hear all classes of cases.
Under paragraph (A)(3), nothing is intended to limit the master's ability, in a proper case before the master, to recommend to the court that a warrant be issued. This includes arrest, bench, and search warrants.
Concerning the provisions of paragraph (B), see 42 Pa.C.S. § 6305(b).
Under paragraph (B)(2), it should be determined whenever possible before the date of the hearing whether there will be an objection to having the matter heard before a master. If it is anticipated that there will be an objection, the case is to be scheduled in front of the judge, rather than the master to prevent continuances and delays in the case.
See Rule 1127 for recording of proceedings before a master.
Rule 1190. Stipulations Before Master.
A. Types of cases. Masters may accept stipulations in any classes of cases that they are permitted to hear pursuant to Rule 1187.
B. Requirements. The stipulation requirements of Rule 1405 shall be followed.
Comment Under paragraph (A), a master may accept stipulations in those permissible classes of cases pursuant to Rule 1187. In addition, the president judge of each judicial district may further restrict the classes of cases. See Rule 1185.
The court is to receive corroborating evidence, in addition to the stipulated facts, to make an independent determination that a child is dependent. See Rule 1405 and its Comment.
Rule 1191. Master's Findings and Recommendation to the Judge.
A. Announcement of Findings and Recommendation. At the conclusion of the hearing, the master shall announce in open court on the record, the master's findings and recommendation to the judge.
B. Submission of Papers and Contents of Recommendation. Within one business day of the hearing, the master shall submit specific findings and a recommendation to the juvenile court judge. If requested, a copy of the findings and recommendation shall be given to any party.
C. Judicial Action. The judge shall by order:
1) accept the recommendation;
2) reject the recommendation and issue an order with a different disposition;
3) send the recommendation back to the master for more specific findings; or
4) schedule a rehearing under Rule 1192 within seven days.
Comment The juvenile court may promulgate a form for masters to use. The findings and recommendation may take the form of a court order to be adopted by the court.
If a party contests the master's decision, the copy of the finding and recommendation may be used as an attachment in a motion for a rehearing in front of the judge.
The master's decision is subject to approval of the judge. When the judge, in rejecting the master's recommendation, modifies a factual determination, a rehearing is to be conducted. The judge may reject the master's findings and enter a new finding or disposition without a rehearing if there is no modification of factual determinations. See In re Perry, 459 A.2d 789 (Pa. Super. Ct. 1983). Nothing in this rule prohibits the court from modifying conclusions of law made by the master.
Rule 1192. Challenge to Master's Recommendation.
A. Time limitation. A party may challenge the master's recommendation by filing a motion with the clerk of courts within three days of receipt of the recommendation. The motion shall request a rehearing by the judge and aver reasons for the challenge.
B. Rehearing. The judge shall act on the challenge within seven days of the date of the motion. The status of the child shall remain the same pending the rehearing unless otherwise ordered by the judge.
Comment Under paragraph (A), the petition for a rehearing may be oral or written. For a re-hearing, there must be cause shown. See 42 Pa.C.S. § 6305.
Under paragraph (B), the judge does not have to grant a rehearing. A judge may deny the request based on the motion. If the judge does grant a hearing, it should be held within seven days of the date of the challenge.
CHAPTER 12. COMMENCEMENT OF PROCEEDINGS, EMERGENCY CUSTODY, AND PRE-ADJUDICATORY PLACEMENT PART A. COMMENCING PROCEEDINGS
Rule
1200. Commencing Proceedings. 1201. Procedures for Protective Medical Custody. 1202. Procedures for Protective Custody by Police and County Agency. PART B. EMERGENCY CUSTODY
1210. Order for Protective Custody. PART C. EMERGENCY CUSTODY HEARING
1240. Shelter Care Application. 1241. Notification of Shelter Care Hearing. 1242. General Conduct of Shelter Care Hearing. 1243. Shelter Care Rehearings.
PART A. COMMENCING PROCEEDINGS Rule 1200. Commencing Proceedings.
Dependency proceedings within a judicial district shall be commenced by:
1) the filing of a dependency petition;
2) the submission of an emergency custody application;
3) the taking of the child into protective custody pursuant to a court order or statutory authority;
4) the court accepting jurisdiction of a resident child from another state; or
5) the court accepting supervision of child pursuant to another state's order.
Comment See 42 Pa.C.S. §§ 6321, 6324, 23 Pa.C.S. §§ 6315, 6369, 62 P. S. § 761.
If a county agency has custody of a child under a voluntary placement agreement and custody has exceeded thirty days, dependency proceedings are to be commenced by the filing of a petition on the thirty-first day. A dependency petition is to be filed if a guardian requests return of the child and the county agency refuses to return the child. A dependency petition is to be filed at the time of refusal of return by the county agency. See 55 Pa. Code § 3130.56 for provisions on voluntary agreements.
For procedures on protective medical custody, see Rule 1201. For procedures on protective custody by police and the county agency, see Rule 1202.
Rule 1201. Procedures for Protective Medical Custody.
When a physician examining or treating a child, a director, or a person specifically designated in writing by the director, of any hospital or other medical institution takes a child into custody pursuant to Rule 1200, the following provisions shall apply:
a) Notice.
1) The person taking the child into custody shall notify the guardian and the county agency of:
a) the whereabouts of the child, unless disclosure is prohibited by court order; and
b) the reasons for taking the child into custody.
2) Notice may be oral. The notice shall be reduced to writing within twenty-four hours.
b) Duration of custody. No child may be held in protective custody in a hospital or other medical institution for more than twenty-four hours unless the appropriate county agency is immediately notified that the child has been taken into custody and the county agency obtains an order permitting the child to be held in custody for a longer period. Each judicial district shall ensure that a judge is available twenty-four hours a day, every day of the year to accept and decide actions brought by the county agency within the twenty-four hour period.
Comment Notice to the county agency under paragraph (A) is to insure that appropriate proceedings are commenced. Notice may be oral but is to be reduced to writing within twenty-four hours.
A child taken into protective custody is to be placed during the protective custody in an appropriate medical facility, foster home or other appropriate facility approved by the department for this purpose.
A conference between the guardian of the child taken into protective custody and the employee designated by the county agency to be responsible for the child should be held within forty-eight hours of the time that the child is taken into custody for the purpose of 1) explaining to the guardian the reasons for the temporary detention of the child and the whereabouts of the child, unless disclosure is prohibited by court order; 2) expediting, whenever possible, the return of the child to the custody of the guardian where custody is no longer necessary; and 3) explaining to the guardian the rights provided for by 42 Pa.C.S. §§ 6337, 6338.
See In re J. R. W., 631 A.2d 1019 (Pa. Super. Ct. 1993) and 23 Pa.C.S. § 6315.
Rule 1202. Procedures for Protective Custody by Police and County Agency.
A. Protective custody.
1) No court order.
a) A police officer may take a child into protective custody pursuant to Rule 1200 if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from the surroundings and removal is necessary.
b) Without unnecessary delay, but no more than twenty-four hours after a child is taken into custody, the court shall issue an order for protective custody to provide temporary emergency supervision of a child pending a hearing pursuant to Rule 1242.
2) Court order.
a) A police officer or county agency may obtain a protective custody order removing a child from the home if the court finds that remaining in the home is contrary to the welfare of the child.
b) Pursuant to 23 Pa.C.S. § 6315 and after a court order, the county agency shall take the child into protective custody for protection from abuse. No county agency may take custody of the child without judicial authorization based on the merits of the situation.
B. Notice.
1) The person taking the child into custody shall notify the guardian and the county agency of:
a) the whereabouts of the child, unless disclosure is prohibited by court order; and
b) the reasons for taking the child into custody.
2) Notice may be oral. The notice shall be reduced to writing within twenty-four hours.
C. Placement. A child shall be placed in an appropriate shelter care facility or receive other appropriate care approved by the county agency pending a shelter care hearing pursuant to Rule 1242.
Comment Under paragraph (A)(1)(a) and (A)(2)(a), the police officer's duty is to protect the child and remove the child safely. A police officer may bring the child to the county agency to supervise the child pending a court order that should be given immediately. The police officer's duty is enforcement and removal, whereas the county agency's duty is to supervise the child and find an appropriate placement for the child. A police officer may take custody of the child. See Rule 1800 for suspension of 42 Pa.C.S. § 6324, which provides law enforcement may take a child into custody.
Paragraph (B) is to ensure that if the guardian is not present when the child is removed, the guardian knows the whereabouts of the child and the reasons the child is taken into custody. If the person removing the child is not a caseworker, the county agency is to be notified to commence proceedings in juvenile court.
Under paragraph (C), a child taken into protective custody is to be placed during the protective custody in an appropriate shelter care facility or receive other appropriate care approved by the county agency for this purpose.
A conference between the guardian of the child taken into protective custody and the employee designated by the county agency to be responsible for the child should be held within forty-eight hours of the time that the child is taken into custody for the purpose of 1) explaining to the guardian the reasons for the temporary detention of the child and the whereabouts of the child, unless disclosure is prohibited by court order; 2) expediting, whenever possible, the return of the child to the custody of the guardian where custody is no longer necessary; and 3) explaining to the guardian the rights provided for by 42 Pa.C.S. §§ 6337, 6338.
See 42 Pa.C.S. §§ 6324 and 6326 and 23 Pa.C.S. § 6369.
PART B. EMERGENCY CUSTODY Rule 1210. Order for Protective Custody.
A. Application of order. The application for a court order of protective custody may be orally made; however, the request shall be reduced to writing within twenty-four hours. The request shall set forth reasons for the need of protective custody.
B. Finding of court. A child may be taken into protective custody by court order when the court determines that removal of the child is necessary for the welfare of the child.
C. Law enforcement. The court may authorize a search of the premises by law enforcement or the county agency so that the premises may be entered into without authorization of the owner for the purpose of taking a child into protective custody.
D. Execution of order. The court shall specify:
1) the limitations of the order;
2) the manner in which the order is to be executed; and
3) who shall execute the order.
E. Contents of order. The court order shall include:
1) the name of the child sought to be protected;
2) the date of birth of the child, if known;
3) the whereabouts of the child, if known;
4) the names and addresses of the guardians;
5) the reasons for taking the child into protective custody;
6) a statement that reasonable efforts were made to prevent placement of the child; and
7) a statement of the reasons for keeping the child in shelter care and that remaining in the home is contrary to the welfare of the child.
Comment See 42 Pa.C.S. § 6324 for statutory provisions concerning taking into custody.
For a discussion of the due process requirements for taking a child into emergency custody, see Patterson v. Armstrong County Children and Youth Services, 141 F. Supp. 2d 512 (W. D. Pa. 2001).
The court is to determine whether reasonable efforts were made to prevent placement or in the case of an emergency placement where services were not offered and could not have prevented the necessity of placement, whether this level of effort was reasonable due to the emergency nature of the situation, safety considerations and circumstances of the family. 42 Pa.C.S. § 6332.
See also In re Petition to Compel Cooperation with Child Abuse Investigation, 875 A.2d 365 (Pa. Super. Ct. 2005).
PART C. EMERGENCY CUSTODY HEARING Rule 1240. Shelter Care Application.
A. Filings. A shelter care application may be oral. Within twenty-four hours of exercising protective custody pursuant to Rule 1210, the county agency shall reduce to writing and file a shelter care application with the Juvenile Court.
B. Application contents. Every shelter care application shall set forth plainly:
1) the name of the applicant;
2) the name, date of birth, and address of the child, if known;
3) the name and address of the child's guardian, or if unknown, the name and address of the nearest adult relative;
4) the date that the child was taken into custody;
5) a concise statement of facts in support of the allegation of dependency;
6) if a child is in shelter care, a statement that reasonable efforts to prevent placement were made and there are no less restrictive alternatives available;
7) a verification by the applicant that the facts set forth in the petition are true and correct to the applicant's personal knowledge, information, or belief, and that any false statements are subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;
8) the signature of the applicant and the date of the execution of the application; and
9) the whereabouts of the child unless disclosure is prohibited by the court.
Comment In lieu of a shelter care application, the county agency may file a petition as set forth in Rule 1330.
The primary focus of the shelter care application is to assert that protective custody is needed and the child should remain in the custody of the county agency. A shelter care hearing is to be scheduled within seventy-two hours of taking the child into protective custody. See Rule 1242(D).
Rule 1241. Notification of Shelter Care Hearing.
A. Generally. The applicant for the shelter care hearing shall notify the following persons of the date, time, and place of the shelter care hearing:
1) the child;
2) the guardian(s) of the child;
3) the attorney for the child;
4) the attorney(s) for the guardian(s);
5) the attorney for the county agency;
6) the county agency; and
7) any other appropriate person.
B. Counsel. The guardian of the child shall be notified of the right to counsel immediately after a child is taken into protective custody and before a shelter care hearing.
Comment Notice should be as timely as possible. Because there is a seventy-two hour time restriction, notice may be oral. Every possible attempt to notify all parties is to be made. It is not sufficient to notify only one guardian. All guardians are to be notified. See In re M. L., 757 A.2d 849 (Pa. 2000).
The hearing may go forward if a guardian is not present. However, if a guardian has not been notified, a re-hearing is to be ordered under Rule 1243 upon submission of an affidavit by the guardian.
The court is to direct the county agency to provide the child's foster parent, preadoptive parent or relative providing care for the child with timely notice of the hearing. See 42 Pa.C.S. § 6336.1.
Rule 1242. General Conduct of Shelter Care Hearing.
A. Informing of rights. Upon commencement of the hearing, the court shall ensure that:
1) a copy of the shelter care application is provided to the parties; and
2) all parties are informed of the right to counsel.
B. Manner of hearing.
1) Conduct. The hearing shall be conducted in an informal but orderly manner.
2) Recording. If requested, or if ordered by the court, the hearing shall be recorded by appropriate means. If not so recorded, full minutes of the hearing shall be kept.
3) Testimony and evidence. All evidence helpful in determining the questions presented, including oral or written reports, may be received by the court and relied upon to the extent of its probative value even though not competent in the hearing on the petition. The child's attorney, the guardian, if unrepresented, and the attorney for the guardian shall be afforded an opportunity to examine and controvert written reports so received.
C. Findings. The court shall determine whether:
1) there are sufficient facts in support of the shelter care application;
2) custody of the child is warranted;
3) a) reasonable efforts were made by the county agency to prevent the child's placement; or
b) in the case of an emergency placement where services were not offered, whether the lack of efforts were reasonable; and
4) if a shelter care application is submitted by a person other than the county agency, the court shall make a determination if the person is a party to the proceedings.
D. Prompt hearing. The court shall conduct a hearing within seventy-two hours of taking the child into protective custody.
E. Court order. At the conclusion of the shelter care hearing, the court shall enter a written order as to the following:
1) its findings pursuant to paragraph (C);
2) any conditions placed upon any party;
3) any orders for placement or temporary care of the child; and
4) any orders of visitation.
Comment Under paragraph (C)(4), the court is to determine whether or not a person is a proper party to the proceedings. Regardless of the court's findings on the party status, the court is to determine if the application is supported by sufficient evidence.
Under paragraph (D), the court is to ensure a timely hearing.
Under paragraph (E), the court is to include in its order specific findings that: 1) there are sufficient facts in support of the dependency petition; 2) custody of the child is warranted; and 3) reasonable efforts were made by the county agency to prevent the child's placement or in the case of an emergency placement where services were not offered, whether the lack of efforts were reasonable.
See 42 Pa.C.S. § 6332.
Nothing in this rule prohibits informal conferences, narrowing of issues, if necessary, and the court making appropriate orders to expedite the case through court. The shelter care hearing may be used as a vehicle to discuss the matters needed, narrow the issues, get evidence to be used at future hearings. The court is to insure a timely adjudicatory hearing is held.
See 42 Pa.C.S. § 6339 for orders of physical and mental examinations and treatment.
See Rule 1330(A) for filing of a petition.
Rule 1243. Shelter Care Rehearings.
A. Mandatory Rehearing. If the guardian submits an affidavit to the county agency alleging that the guardian was not notified of the shelter care hearing and that the guardian did not appear or waive appearance at the shelter care hearing, a rehearing shall be held within seventy-two hours of the submission of the affidavit.
B. Discretionary Rehearing. The court may grant a rehearing upon request of a party or on its own motion.
C. Forum. The judge, who heard the original shelter care hearing or adopted the findings of the master, shall hold the rehearing, unless the judge assigns the case to a master.
Comment See 42 Pa.C.S. § 6332(b).
Under paragraph (A), upon receiving an affidavit, the county agency is to schedule a rehearing, forward the affidavit to the proper person to schedule a rehearing, or submit the affidavit to the court for rescheduling.
Under paragraph (C), only a judge may hold a rehearing, unless the judge orders a master to hear the case.
CHAPTER 13. PRE-ADJUDICATORY PROCEDURES PART A. VENUE
Rule
1300. Venue. 1302. Inter-County Transfer. PART B. APPLICATION FOR PRIVATE PETITION
1320. Application to File a Private Petition. 1321. Preliminary Hearing on Application for Private Petition. PART C. PETITION
1330. Petition: Filing, Contents, Function, Aggravated Circumstances. 1331. Service of Petition. 1333. Separate Petitions and Motion to Consolidate Hearing. 1334. Amendment of Petition. 1335. Withdrawal of Petition. 1336. Re-Filing of the Petition After Withdrawal or Dismissal. PART D. PROCEDURES FOLLOWING FILING OF PETITION
1340. Discovery and Inspection. 1342. Pre-Adjudicatory Conference. PART D(1). MOTION PROCEDURES
1344. Motions and Answers. 1345. Filing and Service. PART D(2). ADJUDICATORY SUMMONS AND NOTICE PROCEDURES
1360. Adjudicatory Summons. 1361. Adjudicatory Notice. 1363. Service of Summons. 1364. Failure to Appear on the Summons. PART E. PRESERVATION OF TESTIMONY AND EVIDENCE
1380. Preservation of Testimony After Commencement of Proceedings. 1381. Preservation of Testimony by Video Recording.
PART A. VENUE Rule 1300. Venue.
A. Generally. A dependency proceeding shall be commenced in:
1) the county in which the child is present; or
2) the child's county of residence.
B. Change of venue. For the convenience of parties and witnesses, the court, upon its own motion or motion of any party, may transfer an action to the appropriate court of any county where the action could originally have been brought or could be brought at the time of filing the motion to change venue.
C. Transmission of juvenile court file. If there is a change of venue pursuant to paragraph (B), the transferring court shall forward certified copies of all documents, reports, and summaries in the child's court file to the receiving court.
Comment See 42 Pa.C.S. § 6321.
For procedures regarding motions and answers, see Rule 1344. In addition to the procedures for service of orders under Rule 1167, an order changing venue is to be served upon the new county agency and the receiving court so they may begin proceedings in the receiving county.
Rule 1302. Inter-County Transfer.
A. Transfer. A court may transfer a case to another county at any time.
B. Transmission of juvenile court file. If the case is transferred under paragraph (A), the transferring court shall transmit certified copies of all documents, reports, and summaries in the child's court file.
Comment See 42 Pa.C.S. § 6321.
PART B. APPLICATION FOR PRIVATE PETITION Rule 1320. Application to File a Private Petition.
A. Application contents. Any person, other than the county agency, may present an application to file a private petition with the court. The application shall include the following information:
1) the name of the person applying for a petition;
2) the name of the alleged dependent child;
3) the relationship of the person presenting this application to the child and to any other parties;
4) if known, the following:
a) the date of birth and address of the child;
b) the name and address of the child's guardian, or the name and address of the nearest adult relative;
c) if a child is Native American, the child's Native American history or affiliation with a tribe;
d) a statement, including court file numbers where possible, of pending juvenile or family court proceedings and prior or present juvenile or family court orders relating to the child;
5) a concise statement of facts in support of the allegations for which the application for a petition has been filed;
6) a statement that the applying person has reported the circumstances underlying this application to the county agency;
7) a verification by the person making the application that the facts set forth in the application are true and correct to the person's personal knowledge, information, or belief, and that any false statements are subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities; and
8) the signature of the person and the date of the execution of the application for a petition.
B. Service. If a person presents an application for a petition under this rule, the person shall serve the application on the court and all parties to the proceeding.
C. Preliminary objections. A party may enter preliminary objections to the application for the petition of dependency by the filing of a motion pursuant to Rule 1344. The court shall rule on the objections at the preliminary hearing pursuant to Rule 1321.
Comment Rule 1330 requires that the county agency file a petition. Any person, other than the county agency, is to file an application to file a petition under this Rule. Rule 1800 suspends 42 Pa.C.S. § 6334, which provides any person may file a petition.
See Rule 1321 for preliminary hearing on application and finding that a petition is to be filed by the county agency.
Rule 1321. Preliminary Hearing on Application for Private Petition.
A. Preliminary hearing. The court shall conduct a hearing within fourteen days of the presentation of the application for a petition to determine:
1) if there are sufficient facts to support a petition of dependency; and
2) whether the person applying for the petition is a proper party to the proceedings.
B. Findings.
1) If the court finds sufficient facts to support a petition of dependency, a petition may be filed pursuant to Rule 1330.
2) If the court finds the person making the application for a petition is a proper party to the proceedings, the person shall be afforded all rights and privileges given to a party pursuant to law.
Comment Under paragraph (A), at a preliminary hearing, the court is to determine if: 1) there are sufficient facts to support a petition of dependency; and 2) the applying person is a proper party to the proceedings. A petition of dependency may go forward whether or not the applying person is determined to be a party to the proceedings.
If a child is in custody, the preliminary hearing under paragraph (A) may be combined with the shelter care hearing pursuant to Rule 1242.
PART C. PETITION Rule 1330. Petition: Filing, Contents, Function, Aggravated Circumstances.
A. Filings.
1) A dependency petition may be filed at any time; however, if a child is taken into custody, the requirements of paragraph (A)(2) shall be met.
2) Within twenty four hours of the shelter care hearing, the county agency shall file a dependency petition with the clerk of courts when:
a) the child remains in protective custody pursuant to Rule 1201, 1202 or 1210; or
b) the child is not in protective custody but it is determined at a shelter care hearing pursuant to Rule 1242 that the filing of a dependency petition is appropriate.
B. Petition contents. Every petition shall set forth plainly:
1) the name of the petitioner;
2) the name, date of birth, and address of the child, if known;
3) the name and address of the child's guardian, or if unknown, the name and address of the nearest adult relative;
4) if a child is Native American, the child's Native American history or affiliation with a tribe;
5) a statement that:
a) it is in the best interest of the child and the public that the proceedings be brought;
b) the child is or is not currently under the supervision of the county agency;
6) a concise statement of facts in support of the allegations for which the petition has been filed;
a) facts for each allegation shall be set forth separately;
b) the relevant statute or code section shall be set forth specifically for each allegation;
7) a verification by the petitioner that the facts set forth in the petition are true and correct to the petitioner's personal knowledge, information, or belief, and that any false statements are subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities;
8) the signature of the petitioner and the date of the execution of the petition; and
9) the whereabouts of the child unless disclosure is prohibited by court order and if taken into custody, the date and time thereof.
C. Aggravated circumstances. A motion for finding of aggravated circumstances may be brought in the petition pursuant to Rule 1701(A).
Comment Petitions should be filed without unreasonable delay.
Under paragraph (A)(2), a petition is to be filed twenty-four hours after the shelter care hearing if the requirements of (A)(2)(a) and (b) are met. Rule 1800 suspends 42 Pa.C.S. § 6331 only as to the time requirement of when a petition is to be filed.
Additionally, paragraph (A)(2) requires that the county agency file a petition. Any other person, other than the county agency, is to file an application to file a petition under Rule 1320. Rule 1800 suspends 42 Pa.C.S. § 6334, which provides any person may file a petition.
For the safety or welfare of a child or a guardian, the court may order that the addresses of the child or a guardian not be disclosed to specified individuals.
A motion for finding of aggravated circumstances may be brought in a dependency petition. See Rule 1701(A). If aggravated circumstances are determined to exist after the filing of a petition, a written motion is to be filed pursuant to Rules 1701 and 1344.
The aggravated circumstances, as defined by 42 Pa.C.S. § 6302, are to be specifically identified in the motion for finding of aggravated circumstances.
Rule 1331. Service of Petition.
A. Copy. Upon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child's guardian, the child's attorney, the guardian's attorney, the attorney for the county agency, and the county agency.
B. Method of Service.
1) Child and guardian. The petition shall be served upon the child and all of the child's guardians by:
a) certified mail, return receipt requested and first-class mail; or
b) delivery in-person.
2) Attorneys and the county agency. The petition shall be served upon the attorneys and county agency by:
a) first-class mail;
b) delivery in-person; or
c) another agreed upon alternative method.
C. Proof of service. An affidavit of service shall be filed prior to the adjudicatory hearing.
Comment Under paragraph (B)(1), if a parent is not the child's custodial guardian, the parent is to also receive service of the petition. See Rule 1120 for definition of ''guardian.''
Alternative methods of services that may be utilized under paragraph (B)(3) could be electronic transmission, facsimile, county agency inter-office mail, and other similar methods.
Rule 1333. Separate Petitions and Motion to Consolidate Hearing.
A. A separate petition for dependency shall be filed for each child alleged to be dependent.
B. If there are multiple petitions filed alleging the dependency of siblings, there shall be a reference in each petition to the sibling's petition.
C. A motion to consolidate the adjudicatory hearing for separate petitions of siblings may be made by any party.
Rule 1334. Amendment of Petition.
A. Amendment.
1) Mandatory. The court shall allow a petition to be amended when there is a defect in:
a) form;
b) the description of the allegations;
c) the description of any person or property; or
d) the date alleged.
2) Discretionary. Absent prejudice to any party, the court may allow a petition to be amended if the petition alleges a different set of events or allegations, where the elements or matters of proof by any party are materially different from the elements or matters of proof to the allegation originally petitioned.
B. Continuance. Upon amendment, the court may:
1) grant a continuance of the adjudicatory hearing; or
2) order other relief as is necessary in the interests of justice.
Comment If a petition is amended, a continuance may be appropriate to allow a party to prepare adequately.
For continuances, see Rule 1122.
Rule 1335. Withdrawal of Petition.
The attorney for the county agency may withdraw the petition. The withdrawal shall be filed with the clerk of courts.
Comment See Rule 1345 for the procedures on filings and service.
Rule 1336. Re-Filing of the Petition After Withdrawal or Dismissal.
A. Re-filing. A petition may be re-filed after the petition has been withdrawn pursuant to Rule 1335 or dismissed by the court.
B. Motion for dismissal. The court may entertain a motion by any party to dismiss the re-filed petition.
Comment If a petition is re-filed, the procedures of Rule 1330 are to be followed. It may be necessary to have a shelter care hearing under the procedures of Rule 1242.
PART D. PROCEDURES FOLLOWING FILING OF PETITION Rule 1340. Discovery and Inspection.
A. Informal. Before any party can seek any disclosure or discovery under these rules, the parties or their counsel shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party that the other party has refused to disclose, the demanding party may make an appropriate motion to the court. Such motion shall be made as soon as possible prior to the hearing. In such motion, the party shall state that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this rule shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.
B. Mandatory disclosure.
1) By the county agency. In all cases, on request by a party and subject to any protective order which the county agency might obtain under this rule, the county agency shall disclose to a party, all of the following requested items or information, provided they are material to the instant case. The county agency shall, when applicable, permit a party to inspect and copy or photograph such items:
a) the name and last known address of each witness to the occurrence that forms the basis of allegations of dependency unless disclosure is prohibited by law;
b) the name and last known address of each witness that did not witness the occurrence but is expected to testify;
c) copies of any written statements made by any party or witness unless disclosure is prohibited by law;
d) any results or reports of scientific tests or expert opinions that are within the possession or control of the county agency that the county agency intends to use as evidence at a hearing;
e) any police reports, records of prior county agency involvement, or records of current or prior reports involving the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq., that the county agency intends to use as evidence at a hearing;
f) if any physical or mental condition of a party is in controversy, any physical or mental examinations, including oral or written reports that a party intends to use as evidence at the adjudicatory hearing;
g) any tangible objects, including documents, photographs, or other tangible evidence;
h) the names, addresses, and curriculum vitae of any expert witness that a party intends to call at a hearing and the subject matter about which each expert witness is expected to testify, and a summary of the grounds for each opinion to be offered; and
i) any other evidence that is material to adjudication, disposition, dispositional review, or permanency unless disclosure is prohibited by law, and is within the possession or control of the county agency;
2) By all other parties. All other parties shall provide discovery to the county agency and all other parties and shall disclose, all of the following requested items or information that the party intends to use at a hearing, provided they are material to the instant case unless disclosure is prohibited by law. The party shall, when applicable, permit the county agency to inspect and copy or photograph such items:
a) the names and last known addresses of each witness that is expected to testify;
b) copies of any written statements made by any party or witness;
c) any tangible objects, including documents, photographs, or other tangible evidence;
d) the names, addresses, and curriculum vitae of any expert witness that a party intends to call at a hearing and the subject matter about which each expert witness is expected to testify, and a summary of the grounds for each opinion to be offered; and
e) any other evidence that a party intends to introduce at a hearing.
C. Discretionary. Upon motion of any party for discovery, the court may order any discovery upon a showing that the evidence is material to the preparation of the case and that the request is reasonable.
D. Continuing Duty to Disclose. If, prior to or during a hearing, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party promptly shall notify the opposing party or the court of the additional evidence, material, or witness.
E. Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence or witnesses not disclosed, or it may enter such other order as it deems just under the circumstances.
F. Protective orders. Upon a sufficient showing, the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate to protect the best interests of the child. Upon motion of any party, the court may permit the showing to be made, in whole or in part, in the form of a written statement to be inspected by the court. If the court enters an order granting relief, the entire text of the statement shall be sealed and preserved in the records of the court to be made available to the appellate court(s) in the event of an appeal.
G. Work product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the attorney for a party, or members of their legal staffs.
Comment Discovery under this rule applies to discovery for the adjudicatory hearing, dispositional hearing, dispositional review hearings, or permanency hearings of dependency proceedings governed by the Juvenile Act. See Rule 1100 for scope of rules. See Rule 1123 for production of documents pursuant to a subpoena duces tecum. See also In re A. H., 763 A.2d 873 (Pa. Super. Ct. 2000).
The purpose of paragraph (A) is to encourage an informal discovery process. Only when the informal process fails and there is a general dispute as to discovery, should a motion to compel discovery be made. Motions may be oral or written, see Rule 1344.
The items listed in paragraph (B) are to be disclosed to ensure a party has the ability to prepare adequately for the hearing. See In re J. C., 603 A.2d 627 (Pa. Super. Ct. 1992).
See Rule 1800 for suspension of 23 Pa.C.S. § 6339, which provides for the confidentiality of reports made pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq., which is suspended only insofar as the Law is inconsistent with Rule 1340(B)(1)(e), which provides for the disclosure of such reports if the reports are going to be used as evidence in a hearing to prove dependency of a child. It is important to note that this section is only suspended if the reports are going to be as evidence during a hearing. If the reports are not going to be used, the confidentiality requirements of 23 Pa.C.S. § 6339 still apply. In addition, confidential sources are protected and the name of the source does not have to be disclosed. See 23 Pa.C.S. § 6340 (c) for protection of confidential sources reporting allegations of abuse under the Child Protective Services Law. 23 Pa.C.S. § 6301 et seq.
Under paragraph (C), the following are examples of evidence that may be material to the preparation of the case, but the list is not meant to be exhaustive: 1) domestic violence treatment records; 2) drug and alcohol treatment records; 3) mental health records; 4) medical records; 5) any other evidence specifically identified, provided the requesting party can additionally establish that its disclosure would be in the interests of justice, including any information concerning any person involved in the case who has received either valuable consideration, or an oral or written promise or contract for valuable consideration, for information concerning the case, or for the production of any work describing the case, or for the right to depict the character of the person in connection with his or her involvement in the case. Items listed in this paragraph are subject to rules of confidentiality and this rule is not intended to subrogate those rules.
Under paragraph (C), the court has discretion, upon motion, to order an expert who is expected to testify at a hearing to prepare a report. However, these provisions are not intended to require a prepared report in every case. The court should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.
It is intended that the remedies provided in paragraph (E) apply equally to all parties, as the interests of justice require.
The provision for a protective order, paragraph (F), does not confer upon any party any right of appeal not presently afforded by law.
In addition to information requested under this rule, an attorney has the right to inspect all court records and files. See Rule 1160.
Rule 1342. Pre-Adjudicatory Conference.
A. Scope of conference. At any time after the filing of a petition, upon motion, or upon its own motion, the court may order the parties to appear before it for a conference.
B. Objections. The parties shall have the right to record an objection to rulings of the court during the conference.
C. Record. The court shall place on the record the agreements or objections made by the parties and rulings made by the court as to any of the matters considered in the pre-adjudicatory conference. Such order shall control the subsequent proceedings unless modified at the adjudicatory hearing to prevent injustice.
Comment This rule does not prevent other forms of pre-adjudicatory conferences. A judge may order a pre-adjudicatory conference between parties without the judge's presence at the conference to discuss preliminary matters.
Under paragraph (A), the court may consider: 1) the terms and procedures for pre-adjudicatory discovery and inspection; 2) the simplification or stipulation of factual issues, including admissibility of evidence; 3) the qualification of exhibits as evidence to avoid unnecessary delay; 4) the number of witnesses who are to give testimony of a cumulative nature; 5) whether expert witnesses will be called; 6) whether the hearing will be scheduled in front of the master or judge; and 7) such other matters as may aid in the disposition of the proceeding.
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