[36 Pa.B. 5571]
[Saturday, September 2, 2006]
[Continued from previous Web Page]
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)(2)(c) could be electronic transmission, facsimile, county agency inter-office mail, and other similar methods.
Rule 1333. Separate Petitions and Consolidated 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. Petitions alleging the dependency of siblings shall be consolidated for one hearing, unless otherwise ordered by the court.
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 A petition may be re-filed after the petition has been withdrawn pursuant to Rule 1335 or dismissed by the court.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 who 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 hearing;
g) any tangible objects, including documents, photographs, or other tangible evidence unless disclosure is prohibited by law;
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 who 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 genuine 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., 412 Pa. Super. 369, 603 A.2d 627 (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 used 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.
PART D(1). MOTION PROCEDURES Rule 1344. Motions and Answers.
A. Generally. All motions and answers shall be made orally on the record or in writing. An answer to a motion is not required unless ordered by the court or otherwise provided in these rules. Failure to answer shall not constitute an admission of the well-pleaded facts alleged in the motion.
B. Filings by attorneys. If a party is represented by an attorney, the attorney shall make or file all motions and answers.
C. Requirements for motions. All motions shall comply with the following requirements:
1) The person making a written motion shall sign the motion. The signature shall constitute a certification that the motion is made in good faith. An oral motion shall be made on the record and the oral motion shall constitute a certification that the motion is made in good faith.
2) The motion shall state with particularity the grounds for the motion, the facts that support each ground, and the types of relief or order requested.
3) If the motion sets forth facts that do not already appear of record in the case, a verification shall be included or an oral statement shall be given that the facts set forth in the motion are true and correct to the movant's personal knowledge, information, or belief.
4) If the motion is written, a certificate of service as required by Rule 1345(C) shall be included.
D. Requirements for answers. All answers, including those that are required either by court order or otherwise required by these rules, shall comply with the following requirements:
1) The person making the answer shall sign the answer or shall reply to the motion on the record. The signature or oral answer on the record shall constitute a certification that the answer is being made in good faith.
2) The answer shall meet the allegations of the motion and shall specify the type of relief, order, or other action sought.
3) If the answer sets forth facts that do not already appear of record in the case, a verification shall be included or an oral answer shall include a statement that the facts set forth in the answer are true and correct to the respondent's personal knowledge, information, or belief.
4) If the answer is written, a certificate of service as required by Rule 1345(C) shall be included.
E. Alternative relief. Any motion may request such alternative relief as may be appropriate.
Comment Under paragraph (A), oral motions and answers are permitted because of the emphasis on prompt disposition in juvenile court. Answers to written motions may be made orally if the answer complies with the requirements of this rule.
Under paragraphs (C)(4) and (D)(4), a certificate of service is required for all written motions and answers. See Rule 1345(B) for service of documents and Rule 1345(C) for certificates of service.
Rule 1345. Filing and Service.
A. Filings.
1) Generally. Except as otherwise provided in these rules, all written motions, and any notice or document for which filing is required, shall be filed with the clerk of courts.
2) Clerk of courts' duties. Except as provided in paragraph (A)(3), the clerk of courts shall docket a written motion, notice, or document when it is received and record the time of filing in the docket. The clerk of courts promptly shall transmit a copy of these papers to such person as may be designated by the court.
3) Filings by represented parties. In any case in which a party is represented by an attorney, if the party submits for filing a written motion, notice, or document that has not been signed by the party's attorney, the clerk of courts shall not file the motion, notice, or document in the child's court file or make a docket entry, but shall forward it promptly to the party's attorney.
4) Method of filing. Filing may be accomplished by:
a) personal delivery to the clerk of courts; or
b) mail addressed to the clerk of courts, provided, however, that filing by mail shall be timely only when actually received by the clerk within the time fixed for filing.
B. Service.
1) Generally. The party filing the document shall serve the other party concurrently with the filing.
2) Method of service to parties. Service on the parties shall be by:
a) personal delivery of a copy to a party's attorney, or, if unrepresented, the party; or
b) mailing a copy to a party's attorney or leaving a copy for the attorney at the attorney's office; or
c) in those judicial districts that maintain in the courthouse assigned boxes for counsel to receive service, leaving a copy for the attorney in the attorney's box; or
d) sending a copy to an unrepresented party by first class mail addressed to the party's place of residence.
C. Proof of service. All documents that are filed and served pursuant to this rule shall include a certificate of service.
Comment See Rule 1166 for maintaining records in the clerk of courts.
Under paragraph (A)(2), the court is to designate a court official to process motions and other matters for appropriate scheduling and disposition.
Under paragraph (B)(1), the party filing a document is required to serve the other party.
This rule does not affect court orders, which are to be served upon each party's attorney and the guardian, if unrepresented, by the clerk of courts as provided in Rule 1167.
For service of petitions, see Rule 1331.
PART D(2). ADJUDICATORY SUMMONS AND NOTICE PROCEDURES Rule 1360. Adjudicatory Summons.
A. Summons. The court shall issue a summons compelling all parties to appear for the adjudicatory hearing.
B. Order appearance. The court may order the person having the physical custody or control of the child to bring the child to the hearing.
C. Requirements. The summons shall:
1) be in writing;
2) set forth the date, time, and place of the adjudicatory hearing;
3) instruct the child and the guardian about their rights to counsel, and if the child's guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel;
4) give a warning stating that the failure to appear for the hearing may result in arrest; and
5) include a copy of the petition unless the petition has been previously served.
Comment Section 6335 of the Juvenile Act provides that the court is to direct the issuance of a summons to the parent, guardian, or other custodian, a guardian ad litem, and any other persons as appear to the court to be proper and necessary parties to the proceedings. It also provides for ordering the person having the physical custody or control of the child to bring the child to the proceeding. 42 Pa.C.S. § 6335. Pursuant to Rule 1361, all parents and relatives providing care for the child are to receive notice of the hearing. Under paragraph (A), the custodial guardian is to receive a summons.
Other persons may be subpoenaed to appear for the hearing. See 42 Pa.C.S. § 6333.
Section 6335(a) of the Juvenile Act requires a copy of the petition to accompany the summons. 42 Pa.C.S. § 6335(a). Under paragraph (C)(5), a petition is to be included with the summons and served pursuant to Rule 1363 unless the petition has already been served pursuant to Rule 1331. See Rule 1800 for suspension of 42 Pa.C.S. § 6335, only to the extent that it conflicts with this rule.
See Rule 1128 for presence at proceedings. See Rule 1124 for general summons procedures.
Rule 1361. Adjudicatory Notice.
The court shall give notice of the adjudicatory hearing to:
1) the attorney for the county agency;
2) the child's attorney;
3) the guardian's attorney;
4) the parents, child's foster parent, preadoptive parent, or relative providing care for the child;
5) the county agency;
6) the court appointed special advocate, if assigned; and
7) any other persons as directed by the court.
Comment All parties are to receive a summons pursuant to Rule 1360.
Rule 1363. Service of Summons.
A. Method of Service. The summons shall be served:
1) in-person; or
2) by certified mail, return receipt and first-class mail.
B. Time of Service.
1) Child in custody. If the child is in protective custody, the summons shall be served no less than seven days prior to the adjudicatory hearing.
2) Child not in custody. If the child is not in protective custody, the summons shall be served no less than fourteen days prior to the adjudicatory hearing.
C. Proof of service. Affidavit of service shall be filed prior to the adjudicatory hearing.
D. Efforts Made to Serve. In the absence of an affidavit of service under paragraph (C), the serving party shall advise the court of what efforts were made to notify a person. The court may proceed to a hearing upon a showing of reasonable efforts to locate and notify all persons pursuant to Rule 1360.
Comment Pursuant to Rule 1360, all parties are to be served a summons. Pursuant to Rule 1361, the attorneys, the parents, child's foster parent, preadoptive parent, and relative providing care for the child are to receive notice.
A copy of the petition is to be included with the summons unless the petition has already been served pursuant to Rule 1331. See Rule 1360 (C)(5).
Rule 1364. Failure to Appear on the Summons.
If any summoned person fails to appear for the adjudicatory hearing and the court finds that sufficient notice was given, the judge may issue a bench warrant.
PART E. PRESERVATION OF TESTIMONY AND EVIDENCE Rule 1380. Preservation of Testimony After Commencement of Proceedings.
A. By Court Order.
1) At any time after the commencement of proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for the adjudicatory hearing or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness' testimony be preserved;
2) The court shall state on the record the grounds on which the order is based;
3) The court's order shall specify the time and place for the taking of the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony;
4) The testimony shall be taken in the presence of the court, all parties and their attorneys, unless otherwise ordered; and
5) The court shall rule on the admissibility of the preserved testimony if it is offered into evidence at the adjudicatory hearing or other judicial proceeding.
B. By agreement of the parties.
1) At any time after the commencement of proceedings, the testimony of any witness may be taken and preserved upon the express written agreement of all parties;
2) The agreement shall specify the time and place for taking the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony;
3) The testimony shall be taken in the presence of all parties and their attorneys unless they otherwise agree;
4) The agreement shall be filed with the clerk of courts pursuant to Rule 1345(A); and
5) The court shall rule on the admissibility of the preserved testimony if it is offered into evidence at the adjudicatory hearing or other judicial proceeding.
Comment This rule is intended to provide the means by which testimony may be preserved for use at a current or subsequent stage in the proceedings, which includes the taking of a deposition during the adjudicatory hearing to be used at a later stage of the adjudicatory hearing.
When testimony is to be preserved by video recording, see also Rule 1381.
This rule does not address the admissibility of the preserved testimony. The court is to decide all questions of admissibility. See the Pennsylvania Rules of Evidence.
''May be unavailable,'' as used in paragraph (A)(1), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at the adjudicatory hearing or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore can not be effectively served with a subpoena, or may become incompetent to testify for any legally sufficient reason.
Under paragraph (A)(4), the court should preside over the taking of testimony. The court, however, may order that testimony be taken and preserved without the court's presence when exigent circumstances exist or the location of the witness renders the court's presence impracticable. Furthermore, nothing in this rule is intended to preclude the parties, their attorneys, and the court from agreeing on the record that the court need not be present. Paragraph (B)(3) permits the parties and their attorneys to determine among themselves whether the court should be present during the taking of testimony. That determination should be made a part of the written agreement required by paragraph (B)(1).
Nothing in this rule is intended to preclude the parties from waiving their presence during the taking of testimony.
The means by which the testimony is recorded and preserved are within the discretion of the court under paragraph (A) and the parties under paragraph (B), and may include the use of electronic or photographic techniques such as videotape or digital video diskette. There are, however, additional procedural requirements for preservation of testimony by video recording mandated by Rule 1381.
The party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony. That party should also promptly provide a copy of the preserved testimony to the other parties. Additionally, this rule is not intended to conflict with the requirements of the Pennsylvania Rules of Judicial Administration. For reporting and transcripts by court-employed reporters, see the Pa.R.J.A. Nos. 5000.1--5000.13.
When testimony is taken under this rule, the proceeding should afford the parties full opportunity to examine and cross-examine the witness. Counsel should not reserve objections at the time of the adjudicatory hearing.
For the definition of ''court,'' see Rule 1120.
Rule 1381. Preservation of Testimony by Video Recording.
A. When the testimony of a witness is taken and preserved pursuant to Rule 1380 by means of video recording, the testimony shall be recorded simultaneously by a stenographer.
B. The following technical requirements shall be made part of the court order required by Rule 1380(A) or the written agreement provided in Rule 1380(B):
1) The video recording shall begin with a statement on camera that includes:
a) the operator's name and business address;
b) the name and address of the operator's employer;
c) the date, time, and place of the video recording;
d) the caption of the case;
e) the name of the witness;
f) the party on whose behalf the witness is testifying; and
g) the nature of the judicial proceedings for which the testimony is intended;
2) The court and the persons shall identify themselves on camera;
3) The witness shall be sworn on camera;
4) If the length of the testimony requires the use of more than one video recording, the end of each video recording and the beginning of each succeeding video recording shall be announced on camera;
5) At the conclusion of the witness' testimony, a statement shall be made on camera that the testimony is concluded. A statement shall also be made concerning the custody of the video recording(s);
6) Statements concerning stipulations, exhibits, or other pertinent matters may be made at any time on camera;
7) The video recording shall be timed by a digital clock on camera that continually shows the hour, minute, and second of the testimony;
8) All objections and the reasons for them shall be made on the record. When the court presides over the video recording of testimony, the court's rulings on objections shall also be made on the record;
9) When the court does not preside over the video recording of testimony, the video recording operator shall keep a log of each objection, referenced to the time each objection is made. All rulings on objections shall be made before the video recording is shown at any judicial proceeding; and
10) The original video recording shall not be altered.
Comment This rule provides the basic technical requirements for taking and preserving testimony by video recording under Rule 1380. The list of requirements is not intended to be exhaustive. Rather, it is recommended that all recording by video be carefully planned and executed, and that in addition to complying with the basic requirements, each court order or written agreement for the video recording of testimony be tailored to the nature of the case and the needs of the persons.
Generally, the camera should focus on the witness to the extent practicable.
Under paragraph (B)(9), the court may rule on objections by either reviewing pertinent sections of the video recording, aided by the video operator's log, or by reviewing the stenographic transcript required by paragraph (A).
Any editing procedure ordered by the court or agreed upon by the persons may be used as long as it comports with current technology and does not alter the original video recording. Paragraph (B)(10) is intended to insure preservation of the original video, thereby providing for those situations in which a dispute arises over editing procedures.
This rule authorizes the use of video recording devices only for the preservation of testimony under Rule 1380. It is not intended to affect other rules governing recording devices.
CHAPTER 14. ADJUDICATORY HEARING Rule
1401. Introduction to Chapter Fourteen. 1404. Prompt Adjudicatory Hearing. 1405. Stipulations. 1406. Adjudicatory Hearing. 1408. Findings on Petition. 1409. Adjudication of Dependency and Court Order. Rule 1401. Introduction to Chapter Fourteen.
Under these rules and the Juvenile Act, 42 Pa.C.S. § 6301 et seq., a determination for each case requires separate and distinct findings. First, the court is to hold an adjudicatory hearing, governed by Rule 1406 or accept stipulations, governed by Rule 1405. Second, after hearing the evidence or accepting the stipulations, the court is to make specific findings on the petition as to each allegation pursuant to Rule 1408, stating with particularity the allegations proven by clear and convincing evidence. Third, after entering its findings, the court is to determine if the child is dependent, pursuant to Rule 1409. If aggravated circumstances are alleged, the court is to determine if aggravated circumstances exist, pursuant to Rule 1705. After the court has made these findings and if the court finds that the child is dependent, the court is to hold a dispositional hearing as provided for in Rule 1512 and is to enter a dispositional order under Rule 1515. Nothing in these rules precludes the court from making these determinations at the same proceeding as long as the requirements of each rule are followed.
Rule 1404. Prompt Adjudicatory Hearing.
A. Child in custody. If a child has been removed from the home, an adjudicatory hearing shall be held within ten days of the filing of the petition.
B. Child not in custody. If a child has not been removed from the home, the adjudicatory hearing shall be held as soon as practical but within forty-five days of the filing of the petition.
Rule 1405. Stipulations.
A. Agreements. At any time after the filing of a petition, any party may present stipulations or agreements by all parties to the court in writing or orally on the record to any or all of the following:
1) Findings of fact to be deemed admitted by the parties;
2) A statement of the parties' agreement for placement;
3) A statement of the parties' agreement for visitation;
4) Time frame within which the stipulation shall be in effect;
5) Time frame within which court shall review compliance; or
6) Any other stipulation or agreement found to be appropriate by the court.
B. Court action. The court shall decide whether to accept the stipulations.
1) Court accepts stipulations.
a) Stipulation to all allegations. If the court accepts the stipulations to all the allegations, the court shall:
i) take additional testimony as necessary to make an independent determination of dependency; and
ii) enter its findings pursuant to Rule 1408 and an adjudication of dependency pursuant to Rule 1409.
b) Stipulations to some allegations or agreements for disposition. If the parties agree to some allegations or placement, visitation, or other disposition resolutions, the court shall hold an adjudicatory hearing as to the remaining contested allegations in the petition pursuant to Rule 1406, followed by its finding on the petition pursuant to Rule 1408 and an adjudication of dependency pursuant to Rule 1409.
2) Court rejects stipulations. If the court rejects the stipulations, the court shall proceed with an adjudicatory hearing pursuant to Rule 1406, followed by its findings on the petition pursuant to Rule 1408 and an adjudication of dependency pursuant to Rule 1409.
Comment If all parties do not agree to all the allegations in the petition, the court is to hold an adjudicatory hearing as to the remaining allegations pursuant to Rule 1406.
Under paragraph (B)(2), the court may reject the stipulations and proceed to an adjudication of dependency pursuant to Rule 1406.
The court is to make an independent determination that a child is dependent. Before accepting the stipulation the judge is to be satisfied that the facts are credible and solidly based and not the product of speculation as to what the child may do in the future. In re Mark T., 296 Pa. Super. 533, 442 A.2d 1179 (1982). Furthermore, to be accepted by the court, such stipulation is to be joined by all the parties. If accepted by the court, the stipulation has evidentiary value and may be considered alone or in conjunction with other evidence. The judge is to consider all of the evidence presented as well as the relevant law to arrive at a reasoned decision regarding dependency. In re Michael Y., 365 Pa. Super. 488, 530 A.2d 115 (1987). See In re A.S., 406 Pa. Super. 466, 594 A.2d 714 (1991) and 42 Pa.C.S. § 6341.
Rule 1406. Adjudicatory Hearing.
A. Manner of hearing. The court shall conduct the adjudicatory hearing in an informal but orderly manner. Prior to commencing the proceedings, the court shall ascertain:
1) whether notice requirements pursuant to Rules 1360 and 1361 have been met; and
2) whether unrepresented parties have been informed of the right to counsel pursuant to 42 Pa.C.S. § 6337.
B. Recording. The adjudicatory hearing shall be recorded. The recording shall be transcribed:
1) pursuant to a court order; or
2) when there is an appeal.
C. Evidence. Each party shall be given the opportunity to:
1) introduce evidence;
2) present testimony; and
3) to cross-examine any witness.
D. Ex parte Communication.
1) Except as provided by these rules, no person shall communicate with the court in any way.
2) If the court receives any ex parte communication, the court shall inform all parties of the communication and its content.
Comment Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues. In re M.B., 356 Pa. Super. 257, 514 A.2d 599 (1986), aff'd, 517 Pa. 459, 538 A.2d 495 (1988).
A full record of the hearing is to be kept. In re J.H., 788 A.2d 1006 (Pa. Super. Ct. 2001). See also 42 Pa.C.S. § 6336.
Under paragraph (B), notes of testimony should be provided to counsel for a party upon good cause shown. The court may place conditions of release on the notes of testimony. Under paragraph (B)(2), when an appeal is taken, the record is to be transcribed pursuant to Pa.R.A.P. 1922. See Pa.R.A.P. 1911 for request of transcript.
Under paragraph (C), the court is to receive evidence from all interested parties and from objective, disinterested witnesses. The judge's findings should be supported by a full discussion of the evidence. See In Re Clouse, 244 Pa. Super. 396, 368 A.2d 780 (1976).
For application of the Rules of Evidence, see Pa.R.E. 101.
Under paragraph (D), no ex parte communications regarding the facts and merits of the case with the court are to occur. Attorneys and judges understand the impropriety of ex parte communications but many participants are not attorneys or judges. This rule ensures that all parties have received the same information that is being presented to the court so that it may be challenged or supplemented. Normal methods of practice and procedure such as motions, scheduling, communications with court personnel, are not considered ex parte communications. See Pa.R.P.C. Rules 3.5. 3.3(d), and 8.3(a) and the Code of Judicial Conduct, Canons 1, 2, and 3.
Rule 1408. Findings on Petition.
After hearing the evidence on the petition or accepting stipulated facts by the parties but no later than seven days, the court shall enter a finding by specifying which, if any, allegations in the petition were proved by clear and convincing evidence.
Comment The court is to specify which allegations in the petition are the bases for the finding of dependency.
Rule 1409. Adjudication of Dependency and Court Order.
A. Adjudicating the child dependent. Once the court has made its findings under Rule 1408, the court shall enter an order whether the child is dependent.
1) Dependency. If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed to a dispositional hearing under Rule 1512.
2) No dependency. If the court finds the child not to be dependent or the court finds a parent ready, willing, and able to provide proper parental care or control, the court shall:
a) dismiss the petition;
b) order the child to be discharged from custody and any restrictions ordered in the proceedings; and
c) enter an order identifying individual(s) who will have the legal and physical custody until such order is modified by further order of the court.
B. Timing.
1) Child in custody. If a child is removed from the home, the court shall enter an adjudication of dependency within seven days of the adjudicatory hearing and enter its findings pursuant to Rule 1408.
2) Child not in custody. If a child is not removed from the home and if the court fails to enter an order of dependency, the court shall hold a status hearing every thirty days.
C. Court order. The court shall include the following in its court order:
1) A statement pursuant to paragraph (A):
a) as to whether the court finds the child to be dependent from clear and convincing evidence;
b) including the specific factual findings that form the bases of the court's decision;
c) including any legal determinations made; and
2) Any orders directing the removal of a child from the home or change in the current residential status, including:
a) orders as to placement; or
b) visitation; or
c) change in custody; and
3) Any orders as to any aids in disposition that may assist in the preparation of the dispositional hearing.
Comment Before the court can find a child to be dependent, there must be clear and convincing evidence in support of the petition. The burden of proof is on the petitioner. The court's inquiry is to be comprehensive and its findings are to be supported by specific findings of fact and a full discussion of the evidence. In re LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976). See also In re Frank W.D., Jr., 315 Pa. Super. 510, 462 A.2d 708 (1983); In re Clouse, 244 Pa. Super. 396, 368 A.2d 780 ( 1976). The evidence must support that the child is dependent. In the Matter of DeSavage, 241 Pa. Super. 174, 360 A.2d 237 (1976). The court is not free to apply the best interest of the child standard as the requirements of the Juvenile Act, 42 Pa.C.S. § 6341(c), require clear and convincing evidence that the child is dependent is the proper standard. In re Haynes, 326 Pa. Super. 311, 473 A.2d 1365 (1983). A child, whose non-custodial parent is ready, willing, and able to provide adequate care for the child, cannot be found dependent on the basis of lacking proper parental care and control. In re M.L., 562 Pa. 646, 757 A.2d 849 (2000). A trial court has the authority to transfer custody or modify custody to the child's non-custodial parent without a finding of dependency if sufficient evidence of dependency would have existed but for the availability of the non-custodial parent. In re Justin S., 375 Pa. Super. 88, 543 A.2d 1192 (1988).
The court is to specify which allegations in the petition are the bases for the finding of dependency pursuant to Rule 1408. The court is to make an adjudication of dependency based upon the allegations in the petition, not on alternative grounds. Due process and fundamental fairness require adequate notice of the allegations to afford a reasonable opportunity to prepare a defense. In re R.M., 567 Pa. 646, 790 A.2d 300 (2002).
Under paragraph (B), if a child is removed from the home, a finding of dependency is to be made within seven days.
Under paragraph (C)(3), aids in disposition may include, but are not limited to, any services, investigations, evaluations, studies, treatment plans, and any other appropriate reports that may aid the court in making its determination at the dispositional hearing. See 42 Pa.C.S. § 6339 for orders of a social study or physical and mental examinations and treatment.
See also 42 Pa.C.S. §§ 6341 & 6302.
CHAPTER 15. DISPOSITIONAL HEARING PART A. SUMMONS AND NOTICE OF THE DISPOSITIONAL HEARING
Rule
1500. Summons for the Dispositional Hearing. 1501. Dispositional Notice. 1509. Aids in Disposition. 1510. prompt Dispositional Hearing. 1511. Pre-Dispositional Statement. 1512. Dispositional Hearing. 1514. Dispositional Finding Before Removal from Home. 1515. Dispositional Order. 1516. Service of the Dispositional Order.
PART A. SUMMONS AND NOTICE OF THE DISPOSITIONAL HEARING Rule 1500. Summons for the Dispositional Hearing.
A. Summons. The court may issue a summons compelling any party to appear for the dispositional hearing.
B. Order appearance. The court may order the person having the physical custody or control of the child to bring the child to the hearing.
C. Requirements. The general summons procedures of Rule 1124 shall be followed.
Comment Section 6335 of the Juvenile Act provides that the court is to direct the issuance of a summons to the parent, guardian, or other custodian, a guardian ad litem, and any other persons as appear to the court to be proper and necessary parties to the proceedings. 42 Pa.C.S. § 6335(a).
Other persons may be subpoenaed to appear for the hearing. See 42 Pa.C.S. § 6333.
Rule 1501. Dispositional Notice.
The court or its designee shall give notice of the dispositional hearing to:
1) all parties;
2) the attorney for the county agency;
3) the child's attorney
4) the guardian's attorney;
5) the parents, child's foster parent, preadoptive parent, or relative providing care for the child;
6) the court appointed special advocate, if assigned; and
7) any other persons as directed by the court.
Rule 1509. Aids in Disposition.
A. Examinations. The court may order the child, parent, guardian, or other person being considered as a dispositional placement resource to undergo any examination permitted by law, as it deems appropriate to aid in the decision for disposition.
B. Experts. Experts may be utilized during the dispositional hearing. Discovery pursuant to Rule 1340 shall occur prior to the dispositional hearing.
C. Family Service Plan or Permanency Plan. If the county agency has completed a family service plan or permanency plan, it shall be given to all parties immediately and submitted to the court upon request.
Comment Section 6341(e) of the Juvenile Act requires the court to receive reports and other evidence bearing on the disposition. In re McDonough, 287 Pa. Super. 326, 430 A.2d 308 (1981).
For discovery rules for the dispositional hearing, see Rule 1340 and its Comments.
Because of time constraints, a family service plan might not be prepared prior to the original dispositional hearing. If the family service plan has been prepared, all parties are to receive the plan to prepare for the dispositional hearing. In all cases, the family service plan is to be completed by the county agency within sixty days of accepting a family for service. See 55 Pa. Code § 3130.61.
Rule 1510. prompt Dispositional Hearing.
If the child has been removed from the home, the dispositional hearing shall be held no later than twenty days after the findings on the petition under Rule 1408.
Comment For continuances, see 42 Pa.C.S. § 6341(e).
Rule 1511. Pre-Dispositional Statement.
The petitioner shall state its recommended disposition in a pre-dispositional statement. The statement shall be filed with the court at least three days prior to the dispositional hearing.
Comment This statement may be included in other court documents, such as, the family service plan or petition.
Rule 1512. Dispositional Hearing.
A. Manner of hearing. The court shall conduct the dispositional hearing in an informal but orderly manner.
1) Evidence. The court shall receive any oral or written evidence which is helpful in determining disposition, including evidence that was not admissible at the adjudicatory hearing.
2) Opportunity to be heard. Before deciding disposition, the court shall give the parent, child's foster parent, preadoptive parent, relative providing care for the child and court appointed special advocate, if assigned, an opportunity to make a statement.
B. Recording. The dispositional hearing shall be recorded. The recording shall be transcribed:
1) pursuant to a court order; or
2) when there is an appeal.
C. Ex parte Communication.
1) Except as provided by these rules, no person shall communicate with the court in any way.
2) If the court receives any ex parte communication, the court shall inform all parties of the communication and its content.
Comment To the extent practicable, the judge or master that presided over the adjudicatory hearing for a child should preside over the dispositional hearing for the same child.
Paragraph (A)(2) does not infringe on the right to call witnesses to testify, in addition to those specified individuals. See Rule 1123 for subpoenaing a witness.
For transcription of the record under paragraph (B), see also Rule 1127.
Under paragraph (C), no ex parte communications with the court are to occur. Attorneys and judges understand the impropriety of ex parte communications but many participants are not attorneys or judges. This rule ensures that all parties have received the same information that is being presented to the court so that it may be challenged or supplemented. Normal methods of practice and procedure such as motions, scheduling, communications with court personnel, are not considered ex parte communications.
Rule 1514. Dispositional Finding Before Removal from Home.
A. Required findings. Prior to entering a dispositional order removing a child from the home, the court shall enter into the record the following specific findings:
1) Continuation of the child in the home would be contrary to the welfare, safety, or health of the child; and
2) One of the following:
a) Reasonable efforts were made prior to the placement of the child to prevent or eliminate the need for removal of the child from the home, if the child has remained in the home pending such disposition; or
b) If preventive services were not offered due to the necessity for emergency placement, whether such lack of services was reasonable under the circumstances; or
c) If the court previously determined that reasonable efforts were not made to prevent the initial removal of the child from the home, whether reasonable efforts are under way to make it possible for the child to return home.
B. Aggravated circumstances. If the court has previously found aggravated circumstances to exist and that reasonable efforts to remove the child from the home or to preserve and reunify the family are not required, a finding under paragraphs (A)(2)(a) through (c) is not necessary.
Comment See 42 Pa.C.S. § 6351(b).
Rule 1515. Dispositional Order.
A. Generally. When the court enters a disposition, the court shall issue a written order, which provides that the disposition is best suited to the safety, protection, and physical, mental, and moral welfare of the child. The order shall include:
1) the terms, conditions, and limitations of the disposition;
2) the name of any person or the name, type, category, or class of agency, licensed organization, or institution that is to provide care, shelter, and supervision of the child;
3) any findings pursuant to Rule 1514 if a child is being removed from the home;
4) any ordered evaluations, tests, counseling, or treatments;
5) any ordered family service plan or permanency plan if not already prepared;
6) any visitations, including any limitations;
7) the date of the order; and
8) the signature and printed name of the judge entering the order.
B. Transfer of legal custody. If the court decides to transfer legal custody of the child to a person or agency found to be qualified to provide care, shelter, and supervision of the child, the dispositional order shall include:
1) the name and address of such person or agency, unless the court determines disclosure is inappropriate;
2) the limitations of the order; and
3) any visitation rights.
C. Orders concerning guardian. The court shall include any conditions, limitations, restrictions, and obligations in its dispositional order imposed upon the guardian.
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