[41 Pa.B. 2413]
[Saturday, May 14, 2011]
[Continued from previous Web Page]
CHAPTER 15. DISPOSITIONAL HEARING
PART A. SUMMONS AND NOTICE OF THE DISPOSITIONAL HEARING Rule 1501. Dispositional Notice.
The court or its designee shall give notice of the dispositional hearing to:
1) all parties;
2) the attorney for the county agency;
3) the child's attorney
4) the guardian's attorney;
5) the parents, child's foster parent, preadoptive parent, or relative providing care for the child;
6) the court appointed special advocate, if assigned; [and]
7) the educational decision maker, if applicable; and
8) any other persons as directed by the court.
Official Note: Rule 1501 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1501 published with the Court's Order at 41 Pa.B. 2428 (May 14, 2011).
PART B. DISPOSITIONAL HEARING AND AIDS Rule 1512. Dispositional Hearing.
* * * * * 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.]
C. Duties of the court. The court shall determine on the record that the parties have been advised of the following:
1) the right to file an appeal;
2) the time limits for an appeal; and
3) the right to counsel to prepare the appeal.
D. Court's findings. The court shall enter its findings and conclusions of law into the record and enter an order pursuant to Rule 1515.
1) On the record in open court, the court shall state:
a) its disposition;
b) the reasons for its disposition;
c) the terms, conditions, and limitations of the disposition;
d) the name of any person or the name, type, category, or class of agency, licensed organization, or institution that shall provide care, shelter, and supervision of the child;
e) whether any evaluations, tests, counseling, or treatments are necessary;
f) the permanency plan for the child;
g) the services necessary to achieve the permanency plan;
h) any findings necessary to ensure the stability and appropriateness of the child's education, and when appropriate, the court shall appoint an educational decision maker pursuant to Rule 1147;
i) any findings necessary to identify, monitor, and address the child's needs concerning health care and disability, if any, and if parental consent cannot be obtained, authorize evaluations and treatment needed; and
j) a visitation schedule, including any limitations.
2) The court shall state on the record in open court or enter into the record through the dispositional order, a finding, if the child is placed, that;
a) remaining in the home would be contrary to the welfare, safety, or health of the child;
b) reasonable efforts were made by the county agency to prevent the child's placement;
c) the child's placement is the least restrictive placement that meets the needs of the child, supported by reasons why there are no less restrictive alternatives available; and
d) if preventive services were not offered due to the necessity of an emergency placement, that such lack of services was reasonable under the circumstances.
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.
Pursuant to paragraph (A)(3), it is expected that the parties be present. Only upon good cause shown should advanced communication technology be utilized.
[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.]
Pursuant to paragraph (C), the court is to advise the parties of their appellate rights orally in the courtroom on the record. The court is to explain the right to appointed counsel for an appeal if a party is without counsel, and without the financial resources or otherwise unable to employ counsel. See 42 Pa.C.S. § 6337; see also Rule 1150(B) for duration of counsel and Rule 1151 for assignment of counsel.
All the findings made in open court are to be placed in writing through the court's dispositional order pursuant to Rule 1515. Nothing in this rule is intended to preclude the court from further explaining its findings in its dispositional order. In addition to the findings pursuant to paragraph (D), see Rule 1514 for dispositional findings before removal from the home.
Pursuant to paragraph (D)(1)(f), the court is to determine the permanency plan for the child. A permanency plan should include two plans or goals: the primary plan and the secondary or concurrent plan.
The primary plan is the comprehensive plan developed to achieve the permanency goal. The secondary or concurrent plan is developed and initiated so that if the primary plan is not fulfilled, timely permanency for the child may still be achieved. These two plans are to be simultaneously addressed by the county agency.
Rule 1608 mandates permanency hearings at least every six months. It is best practice to have three-month hearings to ensure permanency is achieved in a timely fashion and the court is informed of the progress of the case. See Comment to Rule 1608.
Pursuant to paragraph (D)(1)(h), the court is to address the child's educational stability, including the right to an educational decision maker, 42 Pa.C.S. § 6301, 20 U.S.C. § 1439(a)(5), and 34 C.F.R. § 300.519. The court's findings should address the child's right to: 1) educational stability, including the right to: a) remain in the same school regardless of a change in placement when it is in the child's best interest; b) immediate enrollment when a school change is in the child's best interest; and c) have school proximity considered in all placement changes, 42 U.S.C. §§ 675(1)(G) and 11431 et seq.; 2) an educational decision maker pursuant to Rule 1147, 42 Pa.C.S. § 6301, 20 U.S.C. § 1439(a)(5), and 34 C.F.R. § 300.519; 3) an appropriate education, including any necessary special education, early intervention, or remedial services pursuant to 24 P. S. §§ 13-1371 and 13-1372, 55 Pa. Code § 3130.87, and 20 U.S.C. § 1400 et seq.; 4) the educational services necessary to support the child's transition to independent living pursuant to 42 Pa.C.S. § 6351 if the child is sixteen or older; and 5) a transition plan that addresses the child's educational needs pursuant to 42 U.S.C. § 675(5)(H) if the child will age out of care within ninety days.
Pursuant to paragraph (D)(1)(i), the court is to address the child's needs concerning health care and disability. The court's findings should address the right of: 1) a child to receive timely and medically appropriate screenings and health care services pursuant to 55 Pa. Code §§ 3700.51 and 3800.32, and 42 U.S.C. § 1396d(r); 2) a child to a transition plan that addresses the child's health care needs, and includes specific options for how the child can obtain health insurance after leaving care pursuant to 42 U.S.C. § 675(5)(H) if the child will age out of care within 90 days; and 3) a child with disabilities to receive necessary accommodations pursuant to 42 U.S.C. § 12132; 28 C.F.R. § 35.101 et seq., Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. § 84.1 et seq. In addition, the court is to ensure progress and compliance with the child's case plan for the ongoing oversight and coordination of health care services under 42 U.S.C. § 622(b)(15).
Pursuant to the Juvenile Act, the court has authority to order a physical or mental examination of a child and medical or surgical treatment of a minor, who is suffering from a serious physical condition or illness which requires prompt treatment in the opinion of a physician. The court may order the treatment even if the guardians have not been given notice of the pending hearing, are not available, or without good cause inform the court that they do not consent to the treatment. 42 Pa.C.S. § 6339(b).
Pursuant to paragraph (D)(1)(j), the court is to include siblings in its visitation schedule. See 42 U.S.C. § 671(a)(31), which requires reasonable efforts be made to place siblings together unless it is contrary to the safety or well-being of either sibling and that frequent visitation be assured if joint placement cannot be made.
See Rule 1127 for recording and transcribing of proceedings.
See Rule 1136 for ex parte communications.
Official Note: Rule 1512 adopted August, 21, 2006, effective February 1, 2007. Amended April 21, 2011, effective July 1, 2011. Amended April 29, 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. 2428 (May 14, 2011).
Rule 1514. Dispositional Finding Before Removal from Home.
A. Required findings. Prior to entering a dispositional order removing a child from the home, the court shall [enter into] state on the record in open court the following specific findings:
1) Continuation of the child in the home would be contrary to the welfare, safety, or health of the child; [and]
2) The child's placement is the least restrictive placement that meets the needs of the child, supported by reasons why there is no less restrictive alternative available; and
3) One of the following:
a) Reasonable efforts were made prior to the placement of the child to prevent or eliminate the need for removal of the child from the home, if the child has remained in the home pending such disposition; or
b) If preventive services were not offered due to the necessity for emergency placement, whether such lack of services was reasonable under the circumstances; or
c) If the court previously determined that reasonable efforts were not made to prevent the initial removal of the child from the home, whether reasonable efforts are under way to make it possible for the child to return home.
B. Aggravated circumstances. If the court has previously found aggravated circumstances to exist and that reasonable efforts to remove the child from the home or to preserve and reunify the family are not required, a finding under paragraphs [(A)(2)(a)] (A)(3)(a) through (c) is not necessary.
Comment See 42 Pa.C.S. § 6351(b).
Official Note: Rule 1514 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1514 published with the Court's Order at 41 Pa.B. 2428 (May 14, 2011).
Rule 1515. Dispositional Order.
A. Generally. When the court enters a disposition, the court shall issue a written order, which provides that the disposition is best suited to the safety, protection, and physical, mental, and moral welfare of the child. The order shall include:
1) [the terms, conditions, and limitations of the disposition] any findings pursuant to Rules 1512(D) and 1514;
2) [the name of any person or the name, type, category, or class of agency, licensed organization, or institution that is to provide care, shelter, and supervision of the child;
3) any findings pursuant to Rule 1514 if a child is being removed from the home;
4) any ordered evaluations, tests, counseling, or treatments;
5) any ordered family service plan or permanency plan if not already prepared;
6) any visitations, including any limitations;
7)] the date of the order; and
[8)] 3) the signature and printed name of the judge entering the order.
B. Transfer of [legal] custody. If the court decides to transfer [legal] custody of the child to a person or agency found to be qualified to provide care, shelter, and supervision of the child, the dispositional order shall include:
1) the name and address of such person or agency, unless the court determines disclosure is inappropriate;
2) the limitations of the order, including the type of custody granted; and
3) any visitation rights.
C. [Orders concerning guardian] Guardian. The [court] dispositional order shall include any conditions, limitations, restrictions, and obligations [in its dispositional order] imposed upon the guardian.
Comment See 42 Pa.C.S. §§ 6310, 6351.
When issuing a dispositional order, the court should issue an order that is ''best suited to the safety, protection, and physical, mental, and moral welfare of the child.'' 42 Pa.C.S. § 6351(a). See In re S.J., 906 A.2d 547, 551 (Pa. Super. Ct. 2006) (citing In re Tameka M., 525 Pa. 348, 580 A.2d 750 (1990)), for issues addressing a child's mental and moral welfare.
45 [C.F.R.] CFR § 1356.21 provides a specific foster care provider may not be placed in a court order to be in compliance with and receive funding through the Federal Financial Participation.
Dispositional orders should comport in substantial form and content to the Juvenile Court Judges' Commission model orders to receive funding under the federal Adoption and Safe Families Act (ASFA) of 1997 (P. L. 105-89). The model forms are also in compliance with Title IV-B and Title IV-E of the Social Security Act. For model orders, see http://www.jcjc.state.pa.us or http://www.dpw.state.pa.us or request a copy on diskette directly from the Juvenile Court Judges' Commission, Room 401, Finance Building, Harrisburg, PA 17120.
See In re Tameka M., 525 Pa. 348, 580 A.2d 750 (1990).
Official Note: Rule 1515 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1515 published with the Court's Order at 41 Pa.B. 2428 (May 14, 2011).
CHAPTER 16. POST-DISPOSITIONAL PROCEDURES
PART A. SUMMONS, NOTICE, AND REPORTS Rule 1601. Permanency Hearing Notice.
At least fifteen days prior to the hearing, the court or its designee shall give notice of the permanency hearing to:
1) all parties;
2) the attorney for the county agency;
3) the child's attorney
4) the guardian's attorney;
5) the parents, child's foster parent, preadoptive parent, or relative providing care for the child;
6) the court appointed special advocate, if assigned; [and]
7) the educational decision maker, if applicable; and
8) any other persons as directed by the court.
Official Note: Rule 1601 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1601 published with the Court's Order at 41 Pa.B. 2428 (May 14, 2011).
PART B. PERMANENCY HEARING Rule 1609. [Court Order of] Permanency Hearing [Determinations] Orders.
A. [Findings] Court order. After every permanency hearing, the court shall issue a written order, which provides whether the permanency plan is best suited to the safety, protection, and physical, mental, and moral welfare of the child.
B. Determination made. The court's order shall reflect a determination made [consistent with 42 Pa.C.S. § 6351(f.1)] pursuant to Rule 1608(D).
C. Transfer of [legal] custody. If the court decides to transfer [permanent legal] custody of the child to a person found to be qualified to provide care, shelter, and supervision of the child, the permanency order shall include:
1) the name and address of such person unless disclosure is prohibited by court order;
2) the limitations of the order, including the type of custody granted; and
3) any temporary visitation rights of parents.
D. Orders concerning [guardian] education.
1) The court's order shall address the stability and appropriateness of the child's education; and
2) When appropriate, the court shall appoint an educational decision maker pursuant to Rule 1147.
E. Orders concerning health care and disability.
1) The court's order shall identify, monitor, and address the child's needs concerning health care and disability; and
2) The court's orders shall authorize evaluations and treatment if parental consent cannot be obtained.
F. Guardians. The [court] permanency order shall include any conditions, limitations, restrictions, and obligations [in its permanency order] imposed upon the guardian.
Comment [Under paragraph (B), the court's order is to reflect whether: 1) If the court finds that return of the child is best suited to the safety, protection, and physical, mental, and moral welfare of the child, the court shall specify: a) the conditions of the return of the child; and b) the projected date of the return of the child; or 2) If the court finds that the return of the child is not best suited to the safety, protection, and physical, mental, and moral welfare of the child, the court shall determine if and when the child will be placed: a) for adoption and the county agency will file for termination of parental rights pursuant to Pa.O.C.R., Rule 15.4; b) with a legal custodian; c) with a fit and willing relative; or d) in another living arrangement intended to be permanent in nature which is approved by the court and where the county agency has documented a compelling reason explaining why options under (a) through (c) are not feasible.]
When issuing a permanency order, the court should issue an order that is ''best suited to the safety, protection, and physical, mental, and moral welfare of the child.'' 42 Pa.C.S. § 6351(a). See In re S.J., 906 A.2d 547, 551 (Pa. Super. Ct. 2006) (citing In re Tameka M., 525 Pa. 348, 580 A.2d 750 (1990)), for issues addressing a child's mental and moral welfare.
Pursuant to paragraph (D), the court's order is to address the child's educational stability, including the right to an educational decision maker. The order should address the child's right to: 1) educational stability, including the right to: a) remain in the same school regardless of a change in placement when it is in the child's best interest; b) immediate enrollment when a school change is in the child's best interest; and c) have school proximity considered in all placement changes, 42 U.S.C. §§ 675(1)(G) and 11431 et seq.; 2) an educational decision maker pursuant to Rule 1147, 42 Pa.C.S. § 6301, 20 U.S.C. § 1439(a)(5), and 34 C.F.R. § 300.519; 3) an appropriate education, including any necessary special education, early intervention, or remedial services pursuant to 24 P. S. §§ 13-1371 and 13-1372, 55 Pa. Code § 3130.87, and 20 U.S.C. § 1400 et seq.; 4) the educational services necessary to support the child's transition to independent living pursuant to 42 Pa.C.S. § 6351 if the child is sixteen or older; and 5) a transition plan that addresses the child's educational needs pursuant to 42 U.S.C. § 675(5)(H) if the child will age out of care within ninety days.
Pursuant to paragraph (E), the court's order is to address the child's needs concerning health care and disability. The order should address the right of: 1) a child to receive timely and medically appropriate screenings and health care services pursuant to 55 Pa. Code §§ 3700.51 and 3800.32 and 42 U.S.C. § 1396d(r); 2) a child to a transition plan that addresses the child's health care needs, and includes specific options for how the child can obtain health insurance after leaving care pursuant to 42 U.S.C. § 675(5)(H) if the child will age out of care within ninety days; and 3) a child with disabilities to receive necessary accommodations pursuant to 42 U.S.C. § 12132; 28 C.F.R. § 35.101 et seq., Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. § 84.1 et seq. In addition, the court is to ensure progress and compliance with the child's case plan for the ongoing oversight and coordination of health care services under 42 U.S.C. § 622(b)(15).
Pursuant to the Juvenile Act, the court has authority to order a physical or mental examination of a child and medical or surgical treatment of a minor, who is suffering from a serious physical condition or illness which requires prompt treatment in the opinion of a physician. The court may order the treatment even if the guardians have not been given notice of the pending hearing, are not available, or without good cause inform the court that they do not consent to the treatment. 42 Pa.C.S. § 6339(b).
Official Note: Rule 1609 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1609 published with the Court's Order at 41 Pa.B. 2428 (May 14, 2011).
CHAPTER 18. SUSPENSIONS Rule 1800. Suspensions of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly that apply to dependency proceedings only:
* * * * * 3) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6311(b)(9), which provides that there is not a conflict of interest for the guardian ad litem in communicating the child's wishes and the recommendation relating to the appropriateness and safety of the child's placement and services necessary to address the child's needs and safety, is suspended only insofar as the Act is inconsistent with [Rule] Rules 1151 and 1154, which allows for appointment of separate legal counsel and a guardian ad litem when the guardian ad litem determines there is a conflict of interest between the child's legal interest and best interest.
* * * * * Official Note: Rule 1800 adopted August 21, 2006, effective February 1, 2007. Amended March 19, 2009, effective June 1, 2009; [amended] Amended September 16, 2009, effective immediately. Amended April 29, 2011, effective July 1, 2011.
dCommittee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1800 published with the Court's Order at 41 Pa.B. 2428 (May 14, 2011).
EXPLANATORY REPORT
April 2011 Introduction
The Supreme Court of Pennsylvania has adopted the proposed changes to Rules 120, 242, 406, 500, 512, 513, 515, 600, 610, 1120, 1154, 1240, 1242, 1406, 1501, 1512, 1514, 1515, 1601, 1609, 1800 and New Rules 136, 147, 1136, and 1147 with this Recommendation. The changes are effective July 1, 2011
Educational, Health Care, and Disability Amendments
The majority of the rule amendments address the educational, health, and disability needs of a juvenile or child. The Committee spent extensive time discussing what types of issues the court should address at its hearings and in its orders.
Pursuant to the Juvenile Act, the court shall provide for the welfare, health, and safety of children under its supervision. See 42 Pa.C.S. § 6301. To achieve this purpose, the court must address the basic needs of juveniles or children, which include: educational, health care, and disability needs.
Educational, health care, and disability needs of juveniles or children in the system must be met in order to ensure their welfare, health, and safety. The court's role in addressing these needs is not merely a matter of best practice, but rather an essential component to ensuring the fundamental needs of juveniles or children under its supervision are addressed.
With the amendments regarding education, the Rules effectively address the educational needs by focusing on three key issues at every stage of the court proceedings: 1) minimizing school changes; 2) ensuring that a juvenile or child is attending school, receiving educational services, and making progress toward graduation; and 3) ensuring that each juvenile or child has a legally authorized educational decision maker.
With the amendments regarding health care and disability, the court must ensure that juveniles' or children's health care and disability needs are identified, monitored, and addressed, and that children with disabilities are receiving necessary accommodations.
As set forth in the amendments, each of these educational, health care, and disability needs must be addressed at each stage of the proceedings and in the court's orders.
New Rules 147 and 1147 provide for the appointment and duties of an educational decision maker. If, at any time, the court determines a juvenile or a child is in need of an educational decision maker, the court shall appoint an appropriate person to fulfill this role.
As early as the detention and shelter care hearing, pursuant to Rules 242 and 1242, the court must inquire about any special needs of the juvenile or child. Then, as the case progresses to the dispositional, dispositional review, commitment review, and permanency hearings, pursuant to Rules 512, 515, 610, 1512, 1515, and 1609, the court must ensure that the identified needs are addressed during the hearing and in its order.
Rules 513 and 1154 require that the juvenile probation officer or the guardian ad litem make specific recommendations concerning these needs. Rule 1154 was added to Rule 1800 (3), which suspends § 6311(B)(9) of the Juvenile Act when there is a conflict of interest for the guardian ad litem in communicating the child's wishes and the recommendation relating to the appropriateness and safety of the child's placement and services.
Other Amendments: Ex parte, Least Restrictive/Reason-able Efforts, Stating Disposition
The other proposed amendments to these rules relate to ex parte communications, the least restrictive placement, reasonable efforts made to prevent placement, and the requirement of the court to state its disposition on the record. In addition, Rules 512, 515, 1512, and 1515 were slightly restructured to place all the findings provisions in the hearing Rules 512 and 1512, rather than in the orders Rules 515 and 1515.
Ex parte Communications
When the Committee published its proposal on ex parte communications, it proposed adding ex parte provisions to particular Rules. The Committee received several requests for one general rule that covers all proceedings instead of prohibiting ex parte communication in specific rules, such as Rule 512 and 1512. These modifications provide one rule for each set of proceedings, delinquency and dependency, that govern ex parte communication for all proceedings.
Least Restrictive/Reasonable efforts
The Juvenile Act requires that the court order the least restrictive disposition that is consistent with the protection of the public and best suited to the juvenile's treatment, supervision, rehabilitation, and welfare. See 42 Pa.C.S. § 6352. The amendment reflecting this provision of the Juvenile Act can be found in Rule 512.
The Committee also noted that courts, when placing a juvenile or child, are not explaining why there are no less restrictive alternatives available in their orders. The amended Rule requires that courts must state specific reasons for placing a juvenile or child, rather than merely a statement that there are no less restrictive alternatives available. These amendments can be found in Rules 1240, 1242, and 1512.
These amendments are also consistent with the Recommendations of the Interbranch Commission on Juvenile Justice.
Stating Its Disposition on the Record
The Committee received a recommendation from the Pennsylvania Children's Roundtable Dependency Bench- book Committee concerning the court orally stating its dispositions on the record. The Committee debated what needed to be stated orally in open court and what could be placed in the dispositional order.
While the Committee was considering this matter, the Interbranch Commission was formed and began conducting its hearings. The same issue of stating the disposition on the record began to emerge. In the Commission's Report, it is recommended that the Comment to Rule 512 be modified to include the factors of the Juvenile Act, which the court should address when it states its reasons for the disposition.
These factors are included in the Comment. In addition, the Rule provides that at the dispositional hearing, the court shall state on the record its findings and conclusions of law that formed the basis of it decision. If the juvenile is placed out-of-home, the court shall impose the least restrictive placement that is consistent with the protection of the public and best suited to the juvenile's treatment, supervision, rehabilitation, and welfare.
These amendments are consistent with the Findings and Recommendations of the Interbranch Commission.
[Pa.B. Doc. No. 11-791. Filed for public inspection May 13, 2011, 9:00 a.m.]
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