[40 Pa.B. 5743]
[Saturday, October 9, 2010]
[Continued from previous Web Page]
CHAPTER 6. POST-DISPOSITIONAL PROCEDURES
PART B. MODIFICATIONS, REVIEWS, AND APPEALS Rule 610. Dispositional and Commitment Review.
A. Dispositional Review Hearing.
1) A court may schedule a review hearing at any time.
2) In all cases [when the juvenile is removed from the home], the court shall [hold] conduct dispositional review hearings at least every six months.
B. Change in dispositional order. Whenever there is a request for a change in the dispositional order, other than a motion to revoke probation as provided in Rule 612, the court shall give the parties notice of the request and an opportunity to be heard.
1) The juvenile may be detained pending a court hearing.
2) A detention hearing shall be held within seventy-two hours of the juvenile's detention, if detained.
3) The juvenile shall be given a statement of reasons for the discharge from a placement facility or request for change in the dispositional order.
4) A review hearing shall be held within twenty days of the discharge from the placement facility or request for change in the dispositional order.
C. Advanced Communication Technology. [If the parties agree, commitment and dispositional review hearings may be held by teleconferencing, two-way simultaneous audio-visual communication, or another similar method when a juvenile is committed to a placement facility. The juvenile shall be permitted to communicate fully and confidentially with the juvenile's attorney immediately prior to and during the proceeding] A juvenile or witness may appear by utilizing advanced communication technology pursuant to Rule 129.
Comment Under paragraph (A), the court may hold a review hearing at any time; however, [if the juvenile is removed from the home,] the court is to conduct a hearing at least every six months. See Rule 800.
Nothing in this rule is intended to prohibit the emergency transfer of a juvenile from a placement facility to a detention facility pending reconsideration of the dispositional order and this rule is not intended to preclude a motion for modification of a dispositional order after the juvenile has been detained.
Some placement facilities are hours away from the dispositional court. Paragraph (C) allows a hearing, when a juvenile is in a placement facility, to be conducted via teleconferencing, two-way simultaneous audio-visual communication, or similar method. The juvenile is to be afforded all the same rights and privileges as if the hearing was held with all present in the courtroom.
Subpart B. DEPENDENCY MATTERS
CHAPTER 11. GENERAL PROVISIONS
PART A. BUSINESS OF COURTS Rule 1120. Definitions.
ADVANCED COMMUNICATION TECHNOLOGY is any communication equipment that is used as a link between parties in physically separate locations and includes, but is not limited to, systems providing for two-way simultaneous audio-visual communication; closed circuit television; telephone and facsimile equipment; and electronic mail.
ADULT is any person, other than a child, eighteen years old or older.
AGGRAVATED CIRCUMSTANCES are those circumstances specifically defined pursuant to the Juvenile Act, 42 Pa.C.S. § 6302.
CHILD is a person who is under the age of eighteen who is the subject of the dependency petition, or who was adjudicated dependent before reaching the age of eighteen years and who, while engaged in a course of instruction or treatment, requests the court to retain jurisdiction until the course has been completed, but in no event shall remain in a course of instruction or treatment past the age of twenty-one years.
CLERK OF COURTS is that official in each judicial district who has the responsibility and function under state law or local practice to maintain the official court record and docket, without regard to that person's official title.
COPY is an exact duplicate of an original document, including any required signatures, produced through mechanical or electronic means and includes, but is not limited to, copies reproduced by transmission using facsimile equipment, or by scanning into and printing out of a computer.
COUNTY AGENCY is the county children and youth social service agency established pursuant to the County Institution District Law, 62 Pa.C.S. § 2305 or established through the county commissioners in the judicial districts where the County Institution District Law was abolished, 16 P. S. §§ 2161, 2168, and supervised by the Department of Public Welfare pursuant to the Public Welfare Code, 62 Pa.C.S. § 901 et seq.
COURT is the Court of Common Pleas, a court of record, which is assigned to hear dependency matters. Court shall include masters when they are permitted to hear cases under these rules. Juvenile court shall have the same meaning as court.
ELECTRONIC FILING is the electronic transmission of a document filed in a proceeding, including but not limited to, motions, proposed orders, requests, exhibits, and attachments, by means other than facsimile transmission.
ELECTRONIC SERVICE is the electronic transmission of a document to a party, attorney, or representative under these rules.
FAMILY SERVICE PLAN is the document in which the county agency sets forth the service objectives for a family and services to be provided to a family by the county agency.
GUARDIAN is any parent, custodian, or other person who has legal custody of a child, or person designated by the court to be a temporary guardian for purposes of a proceeding.
JUDGE is a judge of the Court of Common Pleas.
LAW ENFORCEMENT OFFICER is any person who is by law given the power to enforce the law when acting within the scope of that person's employment.
MASTER is an attorney with delegated authority to hear and make recommendations for dependency matters. Master has the same meaning as hearing officer.
MEDICAL FACILITY is any hospital, urgent care facility, psychiatric or psychological ward, drug and alcohol detoxification or rehabilitation program, or any other similar facility designed to treat a child medically or psychologically.
MINOR is any person under the age of eighteen.
OFFICIAL COURT RECORD is the juvenile court file maintained by the clerk of courts which contains all court orders, court notices, docket entries, filed documents, evidence admitted into the record, and other court designated documents in each case.
PARTY is a person who is legally entitled to participate in the proceedings but nothing in these Rules confers standing upon a person.
PERMANENCY PLAN is a comprehensive plan that will result in a permanent home for the child.
PETITION is a formal document by which a child is alleged to be dependent.
PETITIONER is any person, who signs or verifies, and files a petition.
POLICE OFFICER is any person, who is by law given the power to arrest when acting within the scope of that person's employment.
PROCEEDING is any stage in the dependency process occurring once a shelter care application has been submitted or a petition has been filed.
PROTECTIVE CUSTODY is when a child is taken into custody for protection as an alleged dependent child pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq. or custody may be assumed pursuant to 23 Pa.C.S. § 6315.
RECORDING is the means to provide a verbatim account of a proceeding through the use of a court stenographer, audio recording, audio-visual recording, or other appropriate means.
SHELTER CARE FACILITY is a physically unrestricted facility that provides temporary care of a child and is approved by the Department of Public Welfare.
VERIFICATION is a written statement made by a person that the information provided is true and correct to that 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.
Comment The county agency is a party to the proceeding and should not function as the ''Clerk of Courts.''
The definition of ''clerk of courts'' should not necessarily be interpreted to mean the office of clerk of courts as set forth in 42 Pa.C.S. § 102, but instead refers to that official who maintains the official court record and docket regardless of the person's official title in each judicial district. It is to be determined locally which official is to maintain these records and the associated docket.
The county institution districts in counties of the fourth, fifth, sixth, seventh, and eighth classes were abolished pursuant to 16 P. S. § 2161. It is the county commissioners' duties in the fourth, fifth, sixth, seventh, and eighth classes to provide the children and youth social service agency with the necessary services for the agency to provide care for the child. See 16 P. S. § 2168.
Under the term ''court,'' to determine if masters are permitted to hear cases, see Rule 1187.
For the family service plan, see 55 Pa. Code § 3130.61
The definition of ''law enforcement officer'' does not give the power of arrest to any person who is not otherwise given that power by law.
The ''official court record'' is to contain all court orders, court notices, docket entries, filed documents, evidence admitted into the record, and other court designated documents in each case. The court may also designate any document to be a part of the record. It does not include items contained in county agency's records unless they are made a part of the official record by being filed with the clerk of courts.
The term ''petitioner'' may include any person; however, if the person is not the county agency, an application to file a petition pursuant to Rule 1320 is to be made. If the court, after a hearing, grants the application, the applicant may file a petition.
Rule 1128. Presence at Proceedings.
A. General Rule. All parties shall be present at any proceeding unless the exceptions of paragraph (B) apply.
B. Exceptions.
1) Absence from proceedings. The court may proceed in the absence of a party upon good cause shown except that in no case shall a hearing occur in the absence of a child's attorney. If a child has a guardian ad litem and legal counsel, both attorneys shall be present.
2) Exclusion from proceedings. A party may be excluded from a proceeding only for good cause shown. If a party is so excluded, counsel for the party shall be permitted to be present.
C. Advanced Communication Technology. A child or guardian may appear by utilizing advanced communication technology pursuant to Rule 1129.
D. Order appearance. The court may order any person having the physical custody or control of a child to bring the child to any proceeding.
Comment Under paragraph (B)(1), if a child is an infant, that would qualify as good cause. In no case is a proceeding to occur in the absence of the child's attorney. The court has discretion whether to proceed if the court finds that a party received proper notice of the hearing and has willfully failed to appear.
See In re Adoption of S.B.B. and E.P.R., 372 Pa.Super. 456, 539 A.2d 883 (1988).
Nothing in these rules creates a right of a child to have his or her guardian present. See 42 Pa.C.S. §§ 6310, 6335(b), 6336.1.
Official Note: Rule 1128 adopted August, 21, 2006, effective February 1, 2007.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1128 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Rule 1129. [Open Proceedings (Reserved)] Appearance by Advanced Communication Technology.
A. Generally. The child, guardian, or a witness may appear at a proceeding by utilizing advanced communication technology.
B. Requirements. Advanced communication technology shall be utilized only upon:
1) direction or approval of the court; and
2) good cause shown or by agreement of the parties.
C. Counsel.
1) The child or guardian shall be permitted to confer with counsel before entering into an agreement under paragraph (A)(2).
2) The child shall be permitted to communicate fully and confidentially with counsel immediately prior to and during the proceeding.
Comment Paragraph (A) requires that every child is to appear in court at least once a year. There may be instances in which the child is excused from attending pursuant to Rule 1128; for example, the child is too young.
It is best practice to conduct hearings every three months and for the judge to see the child and guardian in person every six months.
This rule is not intended to compel the use of advanced communication technology but rather permit the use of appearance by telephone or by a system providing two-way simultaneous audio-visual communication. Advanced communication technology may be utilized for the convenience for witnesses; efficient use of resources; or when a party or witness has an illness, is incarcerated, or at a remote location.
Pursuant to paragraph (C), the child or guardian is to be given time to confer with counsel privately. The child is to be afforded all the same rights as if the hearing was held with all parties present in the courtroom.
Rule 1130. [Public Discussion by Court Personnel of Pending Matters] Court Fees Prohibited for Advanced Communication Technology.
[All court personnel including, among others, court clerks, bailiffs, tipstaffs, sheriffs, and court stenographers, are prohibited from disclosing to any person, without authorization from the court, information relating to a pending dependency case that is not part of the court record otherwise available to the public or not part of the record in an open proceeding. This rule specifically prohibits the divulgence of information concerning arguments and proceedings that are closed proceedings, held in chambers, or otherwise outside the presence of the public.]
The court shall not impose any fees upon any party or witness for utilizing advanced communication technology.
Comment See March 13, 2002 Order of the Supreme Court of Pennsylvania (No. 241 Judicial Administration; Doc. No. 1) which provides that no fees shall be imposed against a defendant in a criminal proceeding for the utilization of advanced communication technology.
Rule 1136. Public Discussion by Court Personnel of Pending Matters.
All court personnel including, among others, court clerks, bailiffs, tipstaffs, sheriffs, and court stenographers, are prohibited from disclosing to any person, without authorization from the court, information relating to a pending dependency case that is not part of the court record otherwise available to the public or not part of the record in an open proceeding. This rule specifically prohibits the divulgence of information concerning arguments and proceedings that are closed proceedings, held in chambers, or otherwise outside the presence of the public.
Rule 1140. Bench Warrants for Failure to Appear.
A. Issuance of warrant.
1) Before a bench warrant may be issued by a judge, the judge shall find that the subpoenaed or summoned person received sufficient notice of the hearing and failed to appear.
2) For the purpose of a bench warrant, a judge may not find notice solely based on first-class mail service.
B. Party.
1) Where to take the party.
a) When a party is taken into custody pursuant to a bench warrant, the party shall be taken without unnecessary delay to the judge who issued the warrant or a judge designated by the President Judge to hear bench warrants.
b) If the party is not brought before a judge, the party shall be released unless the warrant specifically orders detention of the party.
c) If the warrant specifically orders detention of a party, the party shall be detained pending a hearing.
i) Minor. If the party is a minor, the party shall be detained in a shelter-care facility or other placement as deemed appropriate by the judge.
ii) Adult. If the party is an adult, the witness shall be detained at the county jail.
2) Prompt hearing.
a) If a party is detained pursuant to a specific order in the bench warrant, the party shall be brought before the judge who issued the warrant, a judge designated by the President Judge to hear bench warrants, or an out-of-county judge pursuant to paragraph (B)(4) within seventy-two hours.
b) If the party is not brought before a judge within this time, the party shall be released.
3) Notification of guardian. If a party is a child and is taken into custody pursuant to a bench warrant, the arresting officer shall immediately notify the child's guardian of the child's whereabouts and the reasons for the issuance of the bench warrant.
4) Out-of-county custody.
a) If a party is taken into custody pursuant to a bench warrant in a county other than the county of issuance, the county of issuance shall be notified immediately.
b) Arrangements to transport the party shall be made immediately.
c) If transportation cannot be arranged immediately, then the party shall be taken without unnecessary delay to a judge of the county where the party is found.
d) The judge will identify the party as the subject of the warrant, decide whether detention is warranted, and order that arrangements be made to transport the party to the county of issuance.
5) Time requirements. The time requirements of Rules 1242, 1404, 1510, and 1607 shall be followed.
C. Witnesses.
1) Where to take the witness.
a) When a witness is taken into custody pursuant to a bench warrant, the witness shall be taken without unnecessary delay to the judge who issued the warrant or a judge designated by the President Judge to hear bench warrants.
b) If the witness is not brought before a judge, the witness shall be released unless the warrant specifically orders detention of the witness.
c) A motion for detention as a witness may be filed anytime before or after the issuance of a bench warrant. The judge may order detention of the witness pending a hearing.
i) Minor. If a detained witness is a minor, the witness shall be detained in a shelter-care facility or other placement as deemed appropriate by the judge.
ii) Adult. If a detained witness is an adult, the witness shall be detained at the county jail.
2) Prompt hearing.
a) If a witness is detained pursuant to paragraph (C)(1)(c) or brought back to the county of issuance pursuant to paragraph (C)(4)(f), the witness shall be brought before the judge by the next business day.
b) If the witness is not brought before a judge within this time, the witness shall be released.
3) Notification of guardian. If a witness who is taken into custody pursuant to a bench warrant is a minor, the arresting officer shall immediately notify the witness's guardian of the witness's whereabouts and the reasons for the issuance of the bench warrant.
4) Out-of-county custody.
a) If a witness is taken into custody pursuant to a bench warrant in a county other than the county of issuance, the county of issuance shall be notified immediately.
b) The witness shall be taken without unnecessary delay and within the next business day to a judge of the county where the witness is found.
c) The judge will identify the witness as the subject of the warrant, decide whether detention as a witness is warranted, and order that arrangements be made to transport the witness to the county of issuance.
d) Arrangements to transport the witness shall be made immediately.
e) If transportation cannot be arranged immediately, the witness shall be released unless the warrant or other order of court specifically orders detention of the witness.
i) Minor. If the witness is a minor, the witness may be detained in an out-of-county shelter-care facility or other placement as deemed appropriate by the judge.
ii) Adult. If the witness is an adult, the witness may be detained in an out-of-county jail.
f) If detention is ordered, the witness shall be brought back to the county of issuance within seventy-two hours from the execution of the warrant.
g) If the time requirements of this paragraph are not met, the witness shall be released.
D. Advanced Communication Technology. A child, guardian, or witness may appear by utilizing advanced communication technology pursuant to Rule 1129.
E. Return & execution of the warrant for parties and witnesses.
1) The bench warrant shall be executed without unnecessary delay.
2) The bench warrant shall be returned to the judge who issued the warrant or to the judge designated by the President Judge to hear bench warrants.
3) When the bench warrant is executed, the arresting officer shall immediately execute a return of the warrant with the judge.
4) Upon the return of the warrant, the judge shall vacate the bench warrant.
Comment Pursuant to paragraph (A), the judge is to ensure that the person received sufficient notice of the hearing and failed to attend. The judge may order that the person be served in-person or by certified mail, return receipt. The judge may rely on first-class mail service if additional evidence of sufficient notice is presented. For example, testimony that the person was told in person about the hearing is sufficient notice. Before issuing a bench warrant, the judge should determine if the guardian was notified.
Under Rule 1800, 42 Pa.C.S. § 6335(c) was suspended only to the extent that it is inconsistent with this rule. Under paragraph (A)(1), the judge is to find a subpoenaed or summoned person failed to appear and sufficient notice was given to issue a bench warrant. The fact that the party or witness may abscond or may not attend or be brought to a hearing is not sufficient evidence for a bench warrant. The normal rules of procedure in these rules are to be followed if a child is detained. See Chapter Twelve, Part D.
Pursuant to paragraph (B)(1)(a), the party is to be taken immediately to the judge who issued the bench warrant or a judge designated by the President Judge of that county to hear bench warrants. Pursuant to paragraph (B)(1)(b), if a bench warrant specifically provides that the party may be detained, the party may be detained without having to be brought before the judge until a hearing within seventy-two hours under paragraph (B)(2)(a). Pursuant to this paragraph, if a hearing is not held promptly, the party is to be released. See paragraph (B)(2)(b).
In paragraphs (B)(1)(c)(i), (C)(1)(c)(i), & (C)(4)(e)(i), ''other placement as deemed appropriate by the judge'' does not include a detention facility if a child is only alleged to be dependent because the use of detention facilities for dependent children is strictly prohibited. See 42 Pa.C.S. §§ 6302 & 6327(e).
Under paragraphs (B)(2) and (B)(4), a party taken into custody pursuant to a bench warrant is to have a hearing within seventy-two hours regardless of where the party is found. See Rule 1242(D).
Pursuant to paragraph (B)(4), the party may be detained out-of-county until transportation arrangements can be made.
Pursuant to paragraph (B)(5), the time requirements of all other rules are to apply to children who are detained. See, e.g., Rules 1242, 1404, 1510, and 1607.
Pursuant to paragraph (C)(1)(a), the witness is to be taken immediately to the judge who issued the bench warrant or a judge designated by the President Judge of that county to hear bench warrants. Pursuant to paragraph (C)(1)(b), if the judge is not available, the witness is to be released immediately unless the warrant specifically orders detention. Pursuant to paragraph (C)(1)(c), a motion for detention as a witness may be filed. If the witness is detained, a prompt hearing pursuant to paragraph (C)(2) is to be held by the next business day or the witness is to be released. See paragraph (C)(2)(b).
Pursuant to paragraph (C)(4)(b), a witness is to be brought before an out-of-county judge by the next business day unless the witness can be brought before the judge who issued the bench warrant within this time. When the witness is transported back to the county of issuance within seventy-two hours of the execution of the bench warrant, the witness is to be brought before the judge who issued the bench warrant by the next business day. See paragraph (C)(4)(f).
Pursuant to paragraph [(D)(2)] (E)(2), the bench warrant is to be returned to the judge who issued the warrant or to the judge designated by the President Judge to hear warrants by the arresting officer executing a return of warrant. See paragraph [(D)(3)] (E)(3).
Pursuant to paragraph [(D)(4)] (E)(4), the bench warrant is to be vacated after the return of the warrant is executed so the party or witness is not taken into custody on the same warrant if the party or witness is released. ''Vacated'' is to denote that the bench warrant has been served, dissolved, executed, dismissed, canceled, returned, or any other similar language used by the judge to terminate the warrant. The bench warrant is no longer in effect once it has been vacated.
See 42 Pa.C.S. § 4132 for punishment of contempt for children and witnesses.
Throughout these rules, the ''child'' is the subject of the dependency proceedings. When a witness or another party is under the age of eighteen, the witness or party is referred to as a ''minor.'' When ''minor'' is used, it may include a child. This distinction is made to differentiate between children who are alleged dependants and other minors who are witnesses. See also Rule 1120 for the definitions of ''child'' and ''minor.''
PART C. RECORDS
PART C(1). ACCESS TO JUVENILE COURT RECORDS Rule 1160. Inspection of the Official Court Record.
A. General Rule. The official court record is only open to inspection 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, its probation officers, 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.
B. Electronic records. Unless authorized by the court, there shall be no public access to juvenile case records maintained in electronic format in the court information systems.
Comment See the Juvenile Act, 42 Pa.C.S. § 6307, for the statutory provisions on inspection of all files and records of the court in a proceeding.
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 official court record as described in Rule 1166, which does not include agency records.
Official Note: Rule 1160 adopted August, 21, 2006, effective February 1, 2007. Amended December 24, 2009, effective immediately.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1160 published with the Court's Order at 36 Pa.B. [5571] 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1160 published with the Court's Order at 40 Pa.B. 222 (January 9, 2010).
CHAPTER 12. COMMENCEMENT OF PROCEEDINGS, EMERGENCY CUSTODY, AND PRE-ADJUDICATORY PLACEMENT
PART C. SHELTER CARE 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.
4) Advanced Communication Technology. A child, guardian, or witness may appear by utilizing advanced communication technology pursuant to Rule 1129.
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.
CHAPTER 13. PRE-ADJUDICATORY PROCEDURES
PART D(1). MOTION PROCEDURES Rule 1345. Filing and Service.
A. [Filings] Generally.
1) [Generally] Filings. 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)] a) Clerk of courts' duties. Except as provided in paragraph [(A)(3)] (A)(1)(b), 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)] b) 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 official court record or make a docket entry, but shall forward it promptly to the party's attorney.
2) Service. The party filing the document shall serve the other party(s) concurrently with the filing.
3) Proof of service. All documents that are filed and served pursuant to this rule shall include a certificate of service.
B. By Paper.
[4)] 1) 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.] Local Rule. If a county has promulgated a local rule regarding electronic filing, the local rule shall comply with Rule 121 and include, at a minimum, provisions which include the following:
1) whether the electronic filing system is permissive or mandatory;
2) if a local rule provides that electronic filing is mandatory, the necessary technical assistance that will be provided to those parties lacking the capability to file documents electronically;
3) methods of accessing the electronic filing systems;
4) which proceedings and documents are subject to the local rule;
5) the specified formats in which all documents shall be submitted to the clerk of courts for filing;
6) the manner in which the clerk of courts will acknowledge receipt, including date and time, of the filed documents to the filing party;
7) the specific time deadline for making electronic filings;
8) the manner in which payment will occur and the costs of the electronic filing;
9) procedures for sending filing status messages to the filing party;
10) whether the clerk of courts will maintain an electronic file only or an electronic file and a hard copy file;
11) procedures for extending the filing time if there is a failure in the county's electronic filing system;
12) back-up procedures if there is a prolonged failure in the county's electronic filing system; and
13) any additional procedures, if necessary, to ensure the security of the website and electronic files.
D. By Electronic Means or Facsimile Transmission. Documents may be filed or served by electronic means and/or facsimile transmission if a county has promulgated a local rule permitting or mandating such filings and service.
1) Electronic Fling. If a county has promulgated a local rule pursuant to paragraph (C) and Rule 1121, electronic filing shall be permitted or mandated.
a) Any document that is submitted for electronic filing shall be deemed the original document;
b) The electronic filing of a document constitutes a certification by the filing party that a hard copy was properly signed and, when applicable, verified;
c) The clerk of courts shall provide electronic access at all times;
d) The clerk of courts shall provide, through the electronic filing system, an acknowledgement of receipt of a document, including the date and time of receipt, in a form that can be printed for retention by the filing party;
e) If a document is not accepted for filing by the clerk of courts or electronic filing system, the clerk of courts or electronic filing system shall immediately notify the filing party of this fact and the reason(s); and
f) Except when caused by the failure of a county's electronic filing system, the filing party shall be responsible for any delay, disruption, interruption of the electronic signals, and legibility of the document that is electronically filed.
2) Electronic service.
a) If a person has electronically filed a document, then parties may be served by electronic service if the parties agree and provide electronic mail addresses to the court.
b) Service by electronic transmission is complete when a document is sent to:
i) the recipient's electronic mail address; or
ii) to the county's electronic filing system website, which in return sends a message to the recipient stating that the document has been filed and is available for review on the system's website.
3) Facsimile Transmission.
a) A party may be served by facsimile transmission, if the parties agree and provide a telephone number for the facsimile transmission to the court.
b) The facsimile cover sheet shall include the:
i) the names, firms, addresses, telephone numbers, facsimile telephone numbers of the party making service and the party being served;
ii) the title(s) of the document being served; and
iii) the number of pages transmitted.
c) Service by facsimile transmission is complete when a document is confirmed as sent.
Comment See Rule 1166 for maintaining records in the clerk of courts.
Under paragraph [(A)(2)] (A)(1)(a), the court is to designate a court official to process motions and other matters for appropriate scheduling and resolution.
Under paragraph [(B)(1)] (A)(2), 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.
Pursuant to paragraph (C), a county may promulgate a local rule permitting or mandating electronic filing. The local rule is to provide specific guidelines on every aspect of the procedure and a means to accommodate those who may assistance during the process.
Specific time requirement are to be set under paragraph (C)(7). For example, the county is to specify whether a document is due at the close of the business day, listing the specific time, or whether the document is due by the end of the actual day at midnight.
Pursuant to paragraph (C)(12), the county is to implement back-up procedures due to a system failure.
Paragraph (D)(1) sets forth the requirements for electronic filings. Pursuant to paragraph (D)(1)(e), if the electronic filing system fails, the party is to be notified immediately. This notification could be an automatic transmission from the electronic filing system that the transmission failed or the clerk of courts may relay this fact to the filing party as soon as it is realized that there was a failure in the system.
If there was not a failure in a county's electronic filing system, all delays, disruptions, interruptions of electronic signals, and legibility of a document are to be the sole responsibility of the filing party. Any time requirements of these rules not met because of such errors are to be the sole responsibility of the filing party. The filing party should ensure the receipt of electronic filing pursuant to paragraph (D)(1)(d) to alleviate any concerns.
Pursuant to paragraph (D)(2) & (3), a party may be served by electronic service or facsimile transmission. If the parties have agreed to electronic service, the attorneys are to provide the court with an electronic mail address or phone number for facsimile transmission.
This rule is not intended to compel the use of electronic filing. The purpose of this rule is not to provide a comprehensive manual but, rather, a framework upon which a local court can proceed with the electronic filing and service of legal papers, while allowing the flexibility to adapt the process on the basis of actual experience.
See Rule 1121 for procedures of local rules.
For service of petitions, see Rule 1331.
CHAPTER 14. ADJUDICATORY HEARING Rule 1406. Adjudicatory Hearing.
A. Manner of hearing. The court shall conduct the adjudicatory hearing in an informal but orderly manner.
1) Notification. Prior to commencing the proceedings, the court shall ascertain:
[1)] a) whether notice requirements pursuant to Rules 1360 and 1361 have been met; and
[2)] b) whether unrepresented parties have been informed of the right to counsel pursuant to 42 Pa.C.S. § 6337.
2) Advanced Communication Technology. A child, guardian, or witness may appear by utilizing advanced communication technology pursuant to Rule 1129.
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.
CHAPTER 15. DISPOSITIONAL HEARING
PART B. DISPOSITIONAL HEARING AND AIDS 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.
3) Advanced Communication Technology. A child, guardian, or witness may appear by utilizing advanced communication technology pursuant to Rule 1129.
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.
CHAPTER 16. POST-DISPOSITIONAL PROCEDURES
PART B. PERMANENCY HEARING Rule 1608. Permanency Hearing.
A. Purpose of hearing. For every case, the court shall conduct a permanency hearing for purposes of determining or reviewing:
1) the permanency plan of the child;
2) the date by which the goal of permanency for the child might be achieved; and
3) whether the placement continues to be best suited to the safety, protection, and physical, mental, and moral welfare of the child.
B. Court's findings. At the permanency hearing, the court shall making findings consistent with 42 Pa.C.S. § 6351(f).
C. Recording. The permanency hearing shall be recorded. The recording shall be transcribed:
1) pursuant to a court order; or
2) when there is an appeal.
D. Evidence.
1) Any evidence helpful in determining the appropriate course of action, including evidence that was not admissible at the adjudicatory hearing, shall be presented to the court.
2) If a report was submitted pursuant to Rule 1604, the court shall review and consider the report as it would consider all other evidence.
E. Advanced Communication Technology. A child, guardian, or witness may appear by utilizing advanced communication technology pursuant to Rule 1129.
F. Family Service Plan or Permanency Plan. The county agency shall review the family service plan or permanency plan at least every six months. If the plan is modified, the county agency shall provide all parties and when requested, the court, with the modified plan at least fifteen days prior to the permanency hearing.
Comment See 42 Pa.C.S. §§ 6341, 6351.
Permanency planning is a concept whereby children are not relegated to the limbo of spending their childhood in foster homes, but instead, dedicated effort is made by the court and the county agency to rehabilitate and reunite the family in a reasonable time, and failing in this, to free the child for adoption. In re M.B., 449 Pa.Super. 507, 674 A.2d 702 (1996) quoting In re Quick, 384 Pa.Super. 412, 559 A.2d 42 (1989).
To the extent practicable, the judge or master that presided over the adjudicatory and original dispositional hearing for a child should preside over the permanency hearing for the same child.
Under paragraph (B), the court is to make a finding consistent with 42 Pa.C.S. § 6351(f), in that the court is to determine all of the following: 1) the continuing necessity for and appropriateness of the placement; 2) the appropriateness, feasibility, and extent of compliance with the permanency plan developed for the child; 3) the extent of progress made toward alleviating the circumstances which necessitated the original placement; 4) the appropriateness and feasibility of the current placement goal for the child; 5) the likely date by which the placement goal for the child might be achieved; 6) whether reasonable efforts were made to finalize the permanency plan in effect; 7) whether the child is safe; 8) if the child has been placed outside the Commonwealth, whether the placement continues to be best suited to the safety, protection, and physical, mental, and moral welfare of the child; 9) the services needed to assist a child who is sixteen years of age or older to make the transition to independent living; and 10) if the child has been in placement for at least fifteen of the last twenty-two months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the child's guardian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a motion to terminate parental rights and to identify, recruit, process, and approve a qualified family to adopt the child unless: a) the child is being cared for by a relative best suited to the physical, mental, and moral welfare of the child; b) the county agency has documented a compelling reason for determining that filing a motion to terminate parental rights would not serve the needs and welfare of the child; or c) the child's family has not been provided with necessary services to achieve the safe return to the child's guardian within the time frames set forth in the permanency plan.
For family service plan requirements, see 55 Pa. Code §§ 3130.61 and 3130.63.
Explanatory Report ''The future is here.'' This statement has been used widely in the last decade by several companies to describe their state-of-the-art products and new technologies invented by their technical gurus.
As advanced technologies emerge while budgets continue to shrink, courts are increasingly utilizing new technologies to help manage their court systems, and to help reduce costs. However, costs are not the only benefit to new technology.
Witnesses, parents, and others, who could not previously attend a hearing, may now participate in the court process. In past years, a non-custodial parent in a remote state prison would not participate in his or her child's hearing. Technology now allows a parent inmate to appear via video conference and participate in the proceedings. Expert witnesses, who otherwise were unavailable, can testify from across the world without any need for travel or waiting in courthouses for their cases to be called.
These proposed Rule additions and modifications begin to address the use of advanced communication technology in juvenile court and the procedures that must be followed when utilizing advanced communication technology.
These Rules provide that a juvenile, child, guardian, or witness may appear at a proceeding via advanced communication technology. However, pursuant to proposed Rules 129(B) and 1129(B), advanced communication technology may only be utilized upon: 1) direction of the court; and 2) good cause shown or by agreement of the parties. If a person wishes to appear in person, the court may not require participation via advanced communication technology.
Prior to agreeing to a hearing utilizing advanced communication technology, a juvenile or child must be permitted to consult with his or her attorney. In addition, the juvenile shall communicate fully with his or her attorney prior to and during the proceedings.
Many judicial districts are allowing attorneys to use their cell phones to speak privately with their client during a hearing. In other districts, the hearing room is being vacated so the juvenile or child can communicate with counsel.
In addition, courts across the country are developing techniques for allowing parties, including the juvenile or child, to speak in private with their attorneys during the proceedings. Judicial districts are encouraged generally to be creative in utilizing advanced communication technology; however, courts may not impose fees for the use of that technology. See new Rules 130 and 1130.
In addition, there shall be no public access to electronic juvenile case records. See Rules 160(C) and 1160(B). Once the public is given access to a case record through electronic means, it is impossible for the court to control the information and to retrieve it, when necessary.
Finally, Rules 345(C) and 1345(C) permit electronic filing if a judicial district has promulgated a local rule. See Rules 345 and 1345(C)(1)—(13). Rules 345(D) and 1345(D) set forth the procedures for electronic filing and service.
[Pa.B. Doc. No. 10-1921. Filed for public inspection October 8, 2010, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
