THE COURTS
Title 237—JUVENILE RULES
PART I. RULES
[ 237 PA. CODE CHS. 1—6, 8,
11, 12, 14, 15 AND 16 ]
Order Amending Rules 120, 128, 140, 141, 242, 394, 406, 512, 610, 800, 1120, 1128, 1140, 1242, 1406, 1512, 1608, Renumbering Rules 130 to 137 and 1130 to 1137, and Adoption of New Rules 129, 130, 1129, and 1130 of the Rules of Juvenile Court Procedure; No. 526 Supreme Court Rules Doc.
[41 Pa.B. 2319]
[Saturday, May 7, 2011]
Order Per Curiam
And Now, this 21st day of April, 2011, upon the recommendation of the Juvenile Court Procedural Rules Committee; the proposal having been published for public comment before adoption at 40 Pa.B. 5743 (Oct. 9, 2010), in the Atlantic Reporter, Third Series Advance Sheets, Vol. 3, No. 1, October 15, 2010, and on the Supreme Court's web-page, and an Explanatory Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the modifications to Rules 120, 128, 140, 141, 242, 394, 406, 512, 610, 800, 1120, 1128, 1140, 1242, 1406, 1512, 1608, renumbering Rules 130 to 137 and 1130 to 1137, and adoption of new Rules 129, 130, 1129, and 1130 of the Rules of Juvenile Court Procedure are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective July 1, 2011.
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart A. DELINQUENCY MATTERS
CHAPTER 1. GENERAL PROVISIONS
PART A. BUSINESS OF COURTS Rule 120. 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.
* * * * * 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 a photocopier, transmission using facsimile equipment, or by scanning into and printing out of a computer.
* * * * * PLACEMENT FACILITY is any facility, privately or publicly owned and operated, that identifies itself either by charter, articles of incorporation or program description, to receive delinquent juveniles or which otherwise provides treatment to juveniles as a case disposition. Placement facilities include, but are not limited to, residential facilities, group homes, after-school programs, and day programs, whether secure or non-secure.
* * * * *
Comment * * * * * The definition of ''proceeding'' includes all formal stages when a written allegation has been submitted, including all subsequent proceedings until supervision is terminated pursuant to Rules 631 or 632. A hearing on a motion alleging probation violations is one of these subsequent stages. See Rule 612 for revocation of probation.
For definition of ''delinquent act,'' see 42 Pa.C.S. § 6302.
Official Note: Rule 120 adopted April 1, 2005, effective October 1, 2005. Amended December 30, 2005, effective immediately. Amended March 23, 2007, effective August 1, 2007. Amended February 26, 2008, effective June 1, 2008. Amended July 28, 2009, effective immediately. Amended December 24, 2009, effective immediately. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 120 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 128. Presence at Proceedings [in Absentia].
A. General rule. The juvenile shall be present at all proceedings unless the exceptions of paragraph (B) apply.
B. Exceptions.
1) Absence from proceedings. The court may proceed with a hearing in the absence of the juvenile if the court finds that the juvenile was properly subpoenaed or summoned to appear and has willfully failed to attend, and the juvenile's attorney is present.
2) Exclusion from proceedings. The juvenile may be excluded from a proceeding only for good cause shown. If the juvenile is so excluded, the juvenile's attorney shall be present.
C. Advanced communication technology. A juvenile may appear utilizing advanced communication technology pursuant to Rule 129.
D. Order appearance. The court may order the guardian to bring the juvenile and to attend the proceeding.
Comment The court has discretion whether to proceed if the court finds that the juvenile received proper notice of the hearing and has willfully failed to appear.
Pursuant to paragraph (B)(2), a juvenile may be excluded only for good cause shown. For example, a juvenile may be removed from the courtroom after repeated warnings for disruptive behavior.
Requiring the juvenile's attorney to be present protects the juvenile's interest if the proceeding is conducted in the juvenile's absence. However, unless good cause is shown, a juvenile should appear in court.
Cf. Commonwealth v. Ford, 650 A.2d 433 (Pa. 1994); Commonwealth v. Sullens, 619 A.2d 1349 (Pa. 1992).
Nothing in these rules creates a right of a juvenile to have his or her guardian present. See 42 Pa.C.S. §§ 6310, 6335(b), and 6336.1.
Official Note: Rule 128 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 128 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 129. [Open Proceedings (Reserved)] Appearance by Advanced Communication Technology.
A. Generally.
1) The juvenile or a witness may appear at a proceeding by utilizing advanced communication technology pursuant to Rule 140, 141, 242, 394, 406, 512, and 610.
2) At a minimum, the juvenile shall appear in person at least once a year.
B. Counsel.
1) The juvenile shall be permitted to confer with counsel before entering into an agreement to appear utilizing advanced communication technology.
2) The juvenile shall be permitted to communicate fully and confidentially with counsel immediately prior to and during the proceeding.
Comment Paragraph (A) requires that every juvenile is to appear in person at least once a year. This includes juveniles who are not removed from their homes but who are under the court's supervision.
This rule is not intended to compel the use of advanced communication technology but rather permit appearance by telephone or by a system providing two-way simultaneous audio-visual communication. Advanced communication technology may be utilized for the convenience of witnesses; efficient use of resources; or when a party or witness has an illness, is incarcerated, or is otherwise in a remote location. See Rules 140, 141, 242, 394, 406, 512, and 610 for specific requirements for the use of advanced communication technology.
Additionally, special care is to be taken when utilizing advanced communication technology to prevent disclosure of sensitive information to unauthorized persons or entities and to prevent a breach of confidentiality between the juvenile and the juvenile's attorney.
Pursuant to paragraph (B)(1), the juvenile is to be permitted to confer with counsel prior to agreeing to a proceeding utilizing advanced communication technology. Pursuant to paragraph (B)(2), the juvenile is permitted to confer with counsel privately prior to and during the proceedings. The juvenile is to be afforded all the same rights as if the hearing was held with all parties present in the courtroom.
Official Note: Rule 129 adopted April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 129 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 130. Court Fees Prohibited for Advanced Communication Technology.
The court shall not impose any fees upon the juvenile 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.
Official Note: Rule 130 adopted April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 130 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule [130] 137. Public Discussion by Court Personnel of Pending Matters.
* * * * * Official Note: Rule 130 adopted April 1, 2005, effective October 1, 2005. Renumbered Rule 137 and amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the renumbering of 130 to 137 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 140. Bench Warrants for Failure to Appear at Hearings.
* * * * * E. Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 129 for a juvenile or a witness unless good cause is shown otherwise.
F. Return and execution of the warrant for juveniles and witnesses.
* * * * *
Comment * * * * * Pursuant to paragraph [(E)(2)] (F)(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 [(E)(3)] (F)(3).
Pursuant to paragraph [(E)(4)] (F)(4), the bench warrant is to be vacated after the return of the warrant is executed. ''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.
Pursuant to paragraph [(E)(5)] (F)(5), once the warrant is vacated, the juvenile probation officer, other court designee, or law enforcement officer is to remove the warrant from all appropriate registries so the juvenile is not taken into custody on the same warrant if the juvenile is released.
See 42 Pa.C.S. § 4132 for punishment of contempt for juveniles and witnesses.
Official Note: Rule 140 adopted February 26, 2008, effective June 1, 2008[; amended]. Amended September 30, 2009, effective January 1, 2010. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 140 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 141. Bench Warrants for Absconders.
* * * * * D. Prompt hearing.
1) The juvenile shall have a detention hearing within seventy-two hours of the placement in detention.
2) A court may utilize advanced communication technology pursuant to Rule 129 for a juvenile or a witness unless good cause is shown otherwise.
* * * * *
Comment * * * * * Pursuant to paragraph (C), the juvenile is to be detained in a detention facility or any other facility designated in the bench warrant. If a juvenile is taken into custody pursuant to the bench warrant in a county other than the county of issuance, the juvenile is to be transported back to the county of issuance prior to the seventy-two-hour detention hearing mandated pursuant to paragraph (D)(1).
Pursuant to paragraphs (D)(1) and (E), the time requirements of the Rules of Juvenile Court Procedure are to apply, including the seventy-two hour detention hearing. See, e.g., Rules 240, 391, 404, 510, and 605.
* * * * * Official Note: Rule 141 adopted September 30, 2009, effective January 1, 2010. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 141 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 2. COMMENCEMENT OF PROCEEDINGS, ARREST PROCEDURES, WRITTEN ALLEGATION, AND PRE-ADJUDICATORY DETENTION
PART D. PRE-ADJUDICATORY DETENTION Rule 242. Detention Hearing.
* * * * * B. Manner of hearing.
* * * * * 4) Presence at hearing. The juvenile shall be present at the detention hearing and the juvenile's attorney or the juvenile, if unrepresented, may:
a) cross-examine witnesses offered against the juvenile; and
b) offer evidence or witnesses, if any, pertinent to the probable cause or detention determination.
5) Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 129 for a juvenile or a witness unless good cause is shown otherwise.
* * * * * Official Note: Rule 242 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 242 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 3. PRE-ADJUDICATORY PROCEDURES
PART G. TRANSFER FOR CRIMINAL PROSECUTION Rule 394. Transfer Hearing.
* * * * * B. Advanced communication technology.
1) Juvenile. A court may utilize advanced communication technology pursuant to Rule 129 for the appearance of the juvenile only if the parties consent.
2) Witness. A court may utilize advanced communication technology pursuant to Rule 129 for the appearance of a witness unless good cause is shown otherwise.
C. Findings. At the hearing, if the court finds:
* * * * * Official Note: Rule 394 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 394 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 4. ADJUDICATORY HEARING Rule 406. Adjudicatory Hearing.
* * * * * C. Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 129 for the appearance of the juvenile or witness only if the parties consent.
Comment Under paragraph (A), the juvenile does not have the right to trial by jury. McKeiver v. Pennsylvania, 403 U. S. 528 (1971).
Official Note: Rule 406 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 406 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 5. DISPOSITIONAL HEARING
PART B. DISPOSITIONAL HEARING AND AIDS Rule 512. Dispositional Hearing.
A. Manner of hearing. The court shall conduct the dispositional hearing in an informal but orderly manner.
* * * * * 3) Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 129 for the appearance of the juvenile or the witness only if the parties consent.
* * * * * Official Note: Rule 512 adopted April 1, 2005, effective October 1, 2005[; amended]. Amended May 17, 2007, effective August 20, 2007. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 512 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 6. POST-DISPOSITIONAL PROCEDURES
PART B. MODIFICATIONS, REVIEWS, AND APPEALS Rule 610. Dispositional and Commitment Review.
A. [Dispositional Review Hearing] Dispositional review hearing. The court shall review its disposition and conduct dispositional review hearings for the purpose of ensuring that the juvenile is receiving necessary treatment and services and that the terms and conditions of the disposition are being met.
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.
2) In all cases, the juvenile shall appear in person at least once a year.
3) The court may schedule a review hearing at any time.
* * * * * 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.] Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 129 for a juvenile or a witness unless good cause is shown otherwise.
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] is to conduct dispositional review hearings as frequently as necessary to ensure that the juvenile is receiving necessary treatment and services and that the terms and conditions of the disposition are being met. See Rule 800.
When conducting a dispositional review hearing, the court is to ensure that the disposition continues to provide balanced attention to the protection of the community, the imposition of accountability for offenses committed, and the development of competencies to enable the juvenile to become a responsible and productive member of the community.
Nothing in this rule prohibits the juvenile from requesting an earlier review hearing. The juvenile may file a motion requesting a hearing when there is a need for change in treatment or services.
[Nothing] Additionally, 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.
Official Note: Rule 610 adopted April 1, 2005, effective October 1, 2005[; amended]. Amended December 30, 2005, effective immediately. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 610 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 8. SUSPENSIONS Rule 800. Suspensions of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly that apply to delinquency proceedings only:
* * * * * 16) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6353(a), which requires dispositional review hearings to be held at least every nine months when a juvenile is removed from the home, is suspended only insofar as it is inconsistent with the requirement of Rule 610, which requires dispositional review hearings to be held at least every six months [when a juvenile is removed from the home].
* * * * * Official Note: Rule 800 adopted April 1, 2005, effective October 1, 2005[; amended]. Amended December 30, 2005, effective immediately[; amended]. Amended March 23, 2007, effective August 1, 2007[; amended]. Amended February 26, 2008, effective June 1, 2008[; amended]. Amended March 19, 2009, effective June 1, 2009. Amended February 12, 2010, effective immediately. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 800 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
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.
* * * * * 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.
* * * * *
Comment * * * * * 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.
The definition of ''proceeding'' includes all formal stages once a shelter care application has been submitted or a petition has been filed, including all subsequent proceedings until supervision is terminated pursuant to Rule 1613.
Official Note: Rule 1120 adopted August 21, 2006, effective February 1, 2007. Amended March 19, 2009, effective June 1, 2009. Amended December 24, 2009, effective immediately. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1120 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 1128. Presence at Proceedings.
* * * * * 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.
Requiring the child's attorney to be present pursuant to paragraph (B)(2) protects the child's interest if the proceeding is conducted in the child's absence. However, unless good cause is shown, a child should appear in court. It is important that all children, including infants, appear in court so the court can observe the interaction between the caregiver and child and observe the child's development and health.
Ensuring a child appears in court on a regular basis is critical because the court oversees the child and is to ensure his or her care, protection, safety, and wholesome mental and physical development. However, the court may ask that the child be removed from the courtroom during sensitive testimony.
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. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1128 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 1129. [Open Proceedings (Reserved)] Appearance by Advanced Communication Technology.
A. Generally.
1) The child, guardian, or a witness may appear at a proceeding by utilizing advanced communication technology pursuant to Rules 1140, 1242, 1406, 1512, and 1608.
2) At a minimum, the child shall appear in person at least every six months unless as otherwise provided by Rule 1128.
B. Counsel.
1) The child or guardian shall be permitted to confer with counsel before entering into an agreement to appear utilizing advanced communication technology.
2) The child or guardian 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 person at least every six months. There may be instances in which the child is excused from attending pursuant to Rule 1128.
This rule is not intended to compel the use of advanced communication technology but rather permit 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 is otherwise in a remote location. See Rules 1140, 1242, 1406, 1512, and 1608 for specific requirements for the use of advanced communication technology.
Additionally, special care is to be taken when utilizing advanced communication technology to prevent disclosure of sensitive information to unauthorized persons and entities or to prevent a breach of confidentiality between a party and the party's attorney.
Pursuant to paragraph (B)(1), the child or guardian is to be permitted to confer with counsel prior to agreeing to a proceeding utilizing advanced communication technology. Counsel includes legal counsel and/or the guardian ad litem. Pursuant to paragraph (B)(2), the child or guardian is permitted to confer with counsel privately prior to and during the proceedings. The child is to be afforded all the same rights as if the hearing was held with all parties present in the courtroom.
Official Note: Rule 1129 adopted April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 1129 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 1130. Court Fees Prohibited for Advanced Communication Technology.
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.
Official Note: Rule 1130 adopted April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 1130 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule [1130] 1137. Public Discussion by Court Personnel of Pending Matters.
* * * * * Official Note: Rule 1130 adopted August, 21, 2006, effective February 1, 2007. Renumbered Rule 1137 and amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the renumbering of 1130 to 1137 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
Rule 1140. Bench Warrants for Failure to Appear.
* * * * * B. Party.
1) Where to take 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] shelter care facility or other placement as deemed appropriate by the judge.
* * * * * C. Witnesses.
1) Where to take 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] shelter care facility or other placement as deemed appropriate by the judge.
* * * * * 4) Out-of-county custody.
* * * * * 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] shelter care facility or other placement as deemed appropriate by the judge.
* * * * * D. Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 1129 unless good cause is shown otherwise.
E. Return & execution of the warrant for parties and witnesses.
* * * * *
Comment * * * * * 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.
* * * * * Official Note: Rule 1140 adopted March 19, 2009, effective June 1, 2009. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1140 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 12. COMMENCEMENT OF PROCEEDINGS, EMERGENCY CUSTODY, AND PRE-ADJUDICATORY PLACEMENT
PART C. SHELTER CARE Rule 1242. [General Conduct of] Shelter Care Hearing.
* * * * * B. Manner of hearing.
* * * * * 4) Advanced communication technology. Upon good cause shown, a court may utilize advanced communication technology pursuant to Rule 1129.
* * * * *
Comment Pursuant to paragraph (B)(4), it is expected that the parties be present. Only upon good cause shown should advanced communication technology be utilized.
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.
* * * * * Official Note: Rule 1242 adopted August, 21, 2006, effective February 1, 2007. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1242 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
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. Upon good cause shown, a court may utilize advanced communication technology pursuant to Rule 1129.
* * * * *
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).
Pursuant to paragraph (A)(2), it is expected that the parties be present. Only upon good cause shown should advanced communication technology be utilized.
* * * * * Official Note: Rule 1406 adopted August, 21, 2006, effective February 1, 2007. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1406 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
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.
* * * * * 3) Advanced communication technology. Upon good cause shown, a court may utilize advanced communication technology pursuant to Rule 1129.
* * * * *
Comment * * * * * 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.
Pursuant to paragraph (A)(3), it is expected that the parties be present. Only upon good cause shown should advanced communication technology be utilized.
* * * * * Official Note: Rule 1512 adopted August, 21, 2006, effective February 1, 2007. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1512 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
CHAPTER 16. POST-DISPOSITIONAL PROCEDURES
PART B. PERMANENCY HEARING Rule 1608. Permanency Hearing.
* * * * * E. Advanced communication technology. Upon good cause shown, a court may utilize 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.
* * * * * Official Note: Rule 1608 adopted August 21, 2006, effective February 1, 2007. Amended December 18, 2009, effective immediately. Amended April 21, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1608 published with the Court's Order at 41 Pa.B. 2327 (May 7, 2011).
EXPLANATORY REPORT
April 2011 Introduction
The Supreme Court of Pennsylvania has adopted the proposed changes to Rules 120, 128, 140, 141, 242, 394, 406, 512, 610, 800, 1120, 1128, 1140, 1242, 1406, 1512, 1608, the renumbering of Rules 130 to 137 and 1130 to 1137, and New Rules 129, 130, 1129, and 1130 with this Recommendation. The changes are effective July 1, 2011.
Background
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, there are significant additional benefits to the use of new technology in delinquency and dependency matters.
Witnesses, guardians, and others, who were otherwise unable to 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, otherwise unavailable, can testify from across the world, avoiding travel time and expenses and potential delays in the proceedings. Some courts have reported that the use of ACT has encouraged the best medical and behavioral health experts to expand their involvement with Children and Youth Services in delinquency and dependency matters because they can participate in a more efficient manner.
These rule additions and modifications address the use of advanced communication technology in juvenile court and the procedures that must be followed when utilizing advanced communication technology.
Rules 120 and 1120—Definitions
These rule changes concern the use of advanced communication technology (ACT) in court proceedings. ACT 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.''
''Copy'' is also defined and ''placement facility'' is clarified to include facilities that otherwise provide treatment to juveniles.
Rules 128 and 1128—Presence at Proceedings
Rule 128 was changed from proceedings in absentia to presence at proceedings to provide consistency between procedures for delinquency proceedings and dependency proceedings. See Rule 1128.
As a general rule under paragraph (A), all juveniles and children should be present at every proceeding. However, in two instances, the court may proceed without a party pursuant to paragraph (B).
First, the court may proceed in the absence of a party if the court finds that: 1) the party was properly subpoenaed or summoned to appear; 2) the party willfully failed to appear; and 3) the party's attorney is present.
Second, a party may be excluded from a proceeding only if: 1) good cause is shown; and 2) the party's attorney is present. For example, a juvenile may be removed from the courtroom after repeated warnings for disruptive behavior.
Paragraph (C) authorizes appearance of a party by utilizing ACT. This authorization allows courts to utilize its available resources to manage its proceedings.
Rules 129 and 1129—Appearance by ACT
These rules provide that a juvenile, child, guardian, or witness may appear at a proceeding via ACT. For delinquency proceedings, a juvenile must appear in person at least once a year. However, in dependency proceedings, a child must appear at least every six months.
It is important in dependency cases for the court to continually observe the child because the child is in the custody of the county agency and under the court's supervision. The court may observe the interaction between the caregiver and the child; as well as, observe the child's development and health.
Prior to agreeing to a hearing utilizing ACT, a juvenile or child must be permitted to consult with his or her counsel. In addition, the juvenile shall communicate fully with his or her counsel prior to and during the proceedings. Counsel as used in this rule includes legal counsel and the guardian ad litem.
Many judicial districts are allowing counsel 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 counsel during the proceedings. Judicial districts are encouraged generally to be creative in utilizing ACT.
Rules 130 and 1130—Court Fees Prohibited for ACT
Courts may not impose fees for the use of ACT. In most instances, the use of ACT is less expensive than requiring a party or witness to appear in person.
Nothing in these rules requires the court to utilize ACT. For example, if a witness is a physician and does not have resources available at his or her office or hospital to utilize ACT, the physician would have to appear in person for the hearing. However, if a guardian is incarcerated and the prison does have the capability of broadcasting using two-way simultaneous audio-visual communication or closed-circuit television to the courthouse, the court should make every effort to ensure that the guardian participates in the proceeding.
Rules 137 and 1137—Public Discussion by Court Personnel of Pending Matters
These rules were renumbered from Rules 130 and 1130 to Rules 137 and 1137.
Rules 140, 141, 242, 610, 1140 and 1242—Bench Warrants for Failure to Appear at Hearings, Bench Warrants for Absconders, Detention Hearing, Dispositional and Commitment Review, and Shelter Care Hearing
The court may utilize ACT for bench warrant, detention, shelter care, dispositional and commitment review hearings unless good cause is shown otherwise. Because of the nature of these hearings, it is not mandatory that a person physically appear before the court. However, if good cause is shown to the court, the court must prohibit the use of ACT.
Rule 394—Transfer Hearing
Because of the nature of these proceedings and potential consequences, the parties must consent to a party's presence at a hearing utilizing ACT. However, a witness may appear utilizing ACT unless good cause is shown otherwise.
Rules 406, 512, 1406, 1512, and 1608—Adjudicatory, Dispositional, and Permanency Hearings
For delinquency proceedings, the juvenile must consent to utilizing ACT for a hearing. In most instances, the juvenile should appear in person. Because of the nature of these proceedings and potential consequences, the juvenile should decide whether to appear in person.
For dependency proceedings, good cause must be shown prior to the court allowing a hearing to proceed when utilizing ACT. It is expected that the parties will be present and only in extenuating circumstances should the court proceed with these hearings utilizing ACT.
[Pa.B. Doc. No. 11-759. Filed for public inspection May 6, 2011, 9:00 a.m.]
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