[36 Pa.B. 5571]
[Saturday, September 2, 2006]
[Continued from previous Web Page]
Comment If there is a conflict of interest between the duties of the guardian ad litem pursuant to paragraphs (7) & (9), the guardian ad litem may move the court for appointment of a separate guardian ad litem or legal counsel. See Rules 1151 and 1800. See also Pa.R.P.C. 1.7 and 1.8.
Rule 1158. Assignment of Court Appointed Special Advocates.
A court appointed special advocate shall follow the duties as set forth in the Juvenile Act, 42 Pa.C.S. § 6342(d) and in the Juvenile Court Judges' Commission's Juvenile Court Standards, 37 Pa. Code, Chapter 200.
PART C. RECORDS
PART C(1). ACCESS TO JUVENILE COURT RECORDS Rule 1160. Inspection of Juvenile Court File/Records.
All files and records of the court in a proceeding are open to inspection only by:
1) The judges, officers, and professional staff of the court;
2) The parties to the proceeding and their counsel and representatives, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court;
3) A public or private agency or institution providing supervision or having custody of the child under order of the court;
4) A court and its probation and other officials or professional staff and the attorney for the defendant for use in preparing a presentence report in a criminal case in which the defendant is convicted and who prior thereto had been a party to a proceeding under the Juvenile Act, 42 Pa.C.S. § 6301 et seq.;
5) The Administrative Office of Pennsylvania Courts;
6) The judges, officers and professional staff of courts of other jurisdictions when necessary for the discharge of their official duties;
7) Officials of the Department of Corrections or a State Correctional Institution or other penal institution to which an individual who was previously adjudicated delinquent in a proceeding under the Juvenile Act, 42 Pa.C.S. § 6301 et seq., has been committed, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court;
8) A parole board, court or county probation official in considering an individual's parole or in exercising supervision over any individual who was previously adjudicated delinquent in a proceeding under the Juvenile Act, 42 Pa.C.S. § 6301 et seq., but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court.
9) The State Sexual Offenders Assessment Board for use in completing assessments; and
10) With leave of court, any other person or agency or institution having a legitimate interest in the proceedings or in the work of the unified judicial system.
Comment See the Juvenile Act, 42 Pa.C.S. § 6307, for the statutory provisions on inspection of the juvenile court's file.
Persons specified in 23 Pa.C.S. § 6340 as having access to reports may qualify as persons having a legitimate interest in the proceedings under paragraph (10). See 23 Pa.C.S. § 6340.
This rule is meant to include the contents of the juvenile court file as described in Rule 1166, which does not include agency records.
PART C(2). MAINTAINING RECORDS Rule 1165. Design of Forms.
The Court Administrator of Pennsylvania, in consultation with the Juvenile Court Procedural Rules Committee, shall design and publish forms necessary to implement these rules.
Comment The purpose of the unified judicial system can be further achieved by creating uniform forms to implement a particular rule.
Rule 1166. Maintaining Records in the Clerk of Courts.
A. Generally. The juvenile court file shall contain all original records, papers, and orders filed, copies of all court notices, and docket entries. These records shall be maintained by the clerk of courts and shall not be taken from the custody of the clerk of courts without order of the court.
B. Docket entries. The clerk of courts shall maintain a list of docket entries: a chronological list, in electronic or written form, of documents and entries in the juvenile court file and of all proceedings in the case. The clerk of courts shall make docket entries at the time the information is made known to the clerk.
C. Contents of docket entries. The docket entries shall include, at a minimum, the following information:
1) the child's name, address, date of birth, if known;
2) the guardian's name, address, if known;
3) the names and addresses of all attorneys who have appeared or entered an appearance, the date of the entry of appearance(s), and the date of any withdrawal of appearance(s);
4) notations concerning all papers filed with the clerk, including all court notices, appearances, motions, orders, findings and adjudications, dispositions, permanency reviews and adoptions, briefly showing the nature and title, if any, of each paper filed, writ issued, and motion made, and the substance of each order or disposition of the court and of the returns showing execution of process;
5) notations concerning motions made orally or orders issued orally in the courtroom when directed by the court;
6) a notation of every judicial proceeding, continuance, and disposition;
7) the location of exhibits made part of the record during the proceedings; and
8) a) the date of receipt in the clerk's office of the order or court notice;
b) the date appearing on the order or court notice; and
c) the date and manner of service of the order or court notice; and
9) all other information required by Rule 1345.
Comment This rule sets forth the mandatory contents of the list of docket entries and the juvenile court file. This is not intended to be an exhaustive list of what is required to be recorded in the docket entries. The judicial districts may require additional information to be recorded in a case or in all cases.
The list of docket entries is a running record of all information related to any action in a dependency case in the court of common pleas of the clerk's county, such as dates of filings, of orders, and of court proceedings, including hearings conducted by masters. Nothing in this rule is intended to preclude the use of automated or other electronic means for time-stamping or making docket entries.
This rule applies to all proceedings in the court of common pleas, including hearings conducted by masters, at any stage of the dependency case.
This rule is not intended to include items contained in the county agency records or reports.
The practice in some counties of creating the list of docket entries only if an appeal is taken is inconsistent with this rule.
The requirement of paragraph (C)(3) that all attorneys and their addresses be recorded makes certain there is a record of all attorneys who have appeared for any party in the case. The requirement also ensures that attorneys are served as required by Rules 1167 and 1345. See also Rule 1345(C) concerning certificates of service.
In those cases in which the attorney has authorized receiving service by facsimile transmission or electronic means, the docket entry required by paragraph (C)(3) is to include the facsimile number or electronic address.
Paragraph (C)(5) recognizes that occasionally disposition of oral motions presented in open court should be reflected in the docket, such as motions and orders.
Rule 1167. Filings and Service of Court Orders and Notices.
A. Filings.
1) All orders and court notices shall be transmitted promptly to the clerk of courts for filing. Upon receipt by the clerk of courts, the order or court notice shall be time-stamped promptly with the date of receipt.
2) All orders and court notices shall be filed in the juvenile court file.
B. Service.
1) A copy of any order or court notice shall be served promptly on each party's attorney, and the party, if unrepresented.
2) The clerk of courts shall serve the order or court notice, unless the president judge has promulgated a local rule designating service to be by the court or its designee.
3) Methods of service. Service shall be:
a) in writing by:
i) personal delivery to the party's attorney, and if unrepresented, the party;
ii) mailing a copy to the party's attorney or leaving a copy for the attorney at the attorney's office;
iii) 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;
iv) sending a copy to an unrepresented party by first class mail addressed to the party's place of business, residence, or detention;
v) sending a copy by facsimile transmission or other electronic means if the party's attorney, and if unrepresented, the party has filed written request for this method of service or has included a facsimile number or an electronic address on a prior legal paper filed in the case;
vi) delivery to the party's attorney, and if unrepresented, the party by carrier service; or
b) orally in open court on the record.
C. Unified Practice. Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule requiring a person to file or serve orders or court notices.
Comment Court notices, as used in this rule, are communications that ordinarily are issued by a judge or the court administrator concerning, for example, calendaring or scheduling, including proceedings requiring the party's presence.
A facsimile number or electronic address set forth on the letterhead is not sufficient to authorize service by facsimile transmission or other electronic means under paragraph (B)(3)(a)(v). The authorization for service by facsimile transmission or other electronic means under this rule is valid only for the duration of the case. A separate authorization is to be filed in each case by the party, if unrepresented, or by the attorney who wants to receive documents by this method of service.
Nothing in this rule is intended to preclude the use of automated or other electronic means for the transmission of the orders or court notices between the judge, court administrator, and clerk of courts, or for time-stamping.
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) any hearing in which any party seeks to establish a permanency goal of adoption or change the permanency goal to adoption;
2) enter orders for emergency or protective custody pursuant to Rules 1200 and 1210;
3) issue warrants; and
4) issue contempt orders.
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 is 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)(1)(c), once the permanency goal has been approved for adoption by a judge, all subsequent reviews or hearings may be heard by the master unless a party objects pursuant to paragraph (B).
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 two business days 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. Challenge to Recommendation. 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.
D. Judicial Action. Within seven days of receipt of the master's findings and recommendation, the judge shall review the findings and recommendation of the master and:
1) accept the recommendation by order;
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) conduct a rehearing.
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 findings 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, 313 Pa. Super. 162, 459 A.2d 789 (1983). Nothing in this rule prohibits the court from modifying conclusions of law made by the master.
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. SHELTER CARE
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 will exceed thirty days, dependency proceedings are to be commenced by the filing of a petition by the thirtieth 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 § 3130.65 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.
For proceedings that have already been commenced in another judicial district, see Rule 1302 for inter-county transfer of the case.
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. The president judge of 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 of Public Welfare 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 when protective 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., 428 Pa. Super. 597, 631 A.2d 1019 (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, an application for a protective custody order shall be made to provide temporary emergency supervision of a child pending a hearing pursuant to Rule 1242. The president judge of 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.
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 and the best interests 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) In all cases, the person taking the child into custody immediately 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 pending a shelter care hearing pursuant to Rule 1242.
Comment Under paragraph (A)(1)(a) & (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 for supervision of 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. Only a police officer may take custody of the child. See Rule 1800 for suspension of 42 Pa.C.S. § 6324, which provides that law enforcement officers may take a child into custody. See Rule 1120 for definition of police officer, which may include a probation officer exercising their power of arrest when authorized by law.
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.
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 when protective 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 & 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 and best interests of the child. The order may initially be oral, provided that it is reduced to writing within twenty-four hours or the next court business day.
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 finding whether reasonable efforts were made to prevent placement of the child; and
7) a finding whether the reasons for keeping the child in shelter care and that remaining in the home is contrary to the welfare and best interests 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. SHELTER CARE 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 the county agency has determined it would pose a risk to the safety of the child or the guardian, or 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 held 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., 562 Pa. 646, 757 A.2d 849 (2000).
The hearing may go forward if a guardian is not present. However, if a guardian has not been notified, a rehearing 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.
If a court appointed special advocate is involved in the case, the court appointed special advocate is to be notified as any other appropriate person pursuant to paragraph (A)(7).
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) remaining in the home would be contrary to the welfare and best interests of the child;
b) reasonable efforts were made by the county agency to prevent the child's placement; or
c) 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) remaining in the home would be contrary to the welfare and best interests of the child, or 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 and narrow the issues. 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. Hearing on Application for Private Petition. PART C. PETITION
1330. Petition: Filing, Contents, Function, Aggravated Circumstances. 1331. Service of Petition. 1333. Separate Petitions and Consolidated 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 or a reason for not having reported the circumstances underlying the application;
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.
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 hearing on application and finding that a petition is to be filed by the county agency.
Rule 1321. Hearing on Application for Private Petition.
A. 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 alleged 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 hearing, the court is to determine if: 1) there are sufficient facts alleged 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 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.
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