THE COURTS
Title 237—JUVENILE RULES
PART I. RULES
[ 237 PA. CODE CHS. 11, 12, 13, 14, 15 AND 16 ]
Proposed Adoption of Pa.R.J.C.P. 1205; Proposed Amendment of Pa.R.J.C.P. 1120, 1210, 1240, 1242, 1330, 1408, 1409, 1512, 1514, 1515, 1608 and 1609
[47 Pa.B. 3962]
[Saturday, July 22, 2017]The Juvenile Court Procedural Rules Committee proposes the adoption of Rule 1205, together with the amendment of Rules 1120, 1210, 1240, 1242, 1330, 1408, 1409, 1512, 1514, 1515, 1608, and 1609 to improve the Rules of Juvenile Court Procedure as they relate to the Indian Child Welfare Act and Bureau of Indian Affairs regulations, for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Daniel A. Durst, Chief Counsel
Juvenile Court Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9541
juvenilerules@pacourts.usAll communications in reference to the proposal should be received by September 7, 2017. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
By the Juvenile Court
Procedural Rules CommitteeKELLY L. McNANEY, Esq.,
Chair
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart B. DEPENDENCY MATTERS
CHAPTER 11. GENERAL PROVISIONS
PART A. BUSINESS OF COURTS Rule 1120. Definitions.
* * * * * HEALTH CARE is care related to any medical need including physical, mental, and dental health. This term is used in the broadest sense to include any type of health need.
INDIAN CHILD is any unmarried person who is under the age of eighteen and is either 1) a member of an Indian tribe or 2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
JUDGE is a judge of the Court of Common Pleas.
* * * * *
Comment * * * * * ''Health care'' includes, but is not limited to, routine physical check-ups and examinations; emergency health care; surgeries; exploratory testing; psychological exams, counseling, therapy and treatment programs; drug and alcohol treatment; support groups; routine eye examinations and procedures; teeth cleanings, fluoride treatments, fillings, preventative dental treatments, root canals, and other dental surgeries; and any other examination or treatment relating to any physical, mental, and dental needs of the child.
The definition for ''Indian Child'' originates from the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.2.
A ''juvenile probation officer'' is an officer of the court. ''Properly commissioned'' as used in the definition of a juvenile probation officer includes the swearing in under oath or affirmation and receipt of a document, certificate, or order of the court memorializing the authority conferred upon the juvenile probation officer by the court.
* * * * * 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. Amended April 29, 2011, effective July 1, 2011. Amended May 20, 2011, effective July 1, 2011. Amended June 24, 2013, effective January 1, 2014. Amended October 21, 2013, effective December 1, 2013. Amended July 28, 2014, effective September 29, 2014. Amended July 13, 2015, effective October 1, 2015. Amended December 9, 2015, effective January 1, 2016. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1120 published with the Court's Order at 45 Pa.B. 7289 (December 26, 2015).
Final Report explaining the amendments of Rule 1120 published with the Court's Order at Pa.B. ( , 2017).
CHAPTER 12. COMMENCEMENT OF PROCEEDINGS, EMERGENCY CUSTODY, AND PRE-ADJUDICATORY PLACEMENT
PART A. COMMENCING PROCEEDINGS (Editor's Note: The following rule is proposed to be added and printed in regular type to enhance readability.)
Rule 1205. Indian Child.
A. Inquiry and Determination.
1) At the commencement of the initial proceeding, the court shall inquire as to the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child. All responses shall be placed on the record.
2) Unless the court is convinced there is no reason to know whether the child is an Indian child, the court shall make such inquiry at all subsequent proceedings.
3) The court shall advise the participants of their obligation to report to the court if they subsequently learn information that provides a reason to know the child is an Indian child.
B. Finding of Court. The court shall make a finding as to whether the child is an Indian child.
C. Additional Requirements.
1) In the event the court has reason to know the child is an Indian child, but lacks sufficient evidence to make such a finding, the court must confirm due diligence has been used to make such determination and the court shall treat the child as an Indian child until it can determine, from the record, that the child does not meet the definition of an Indian child.
2) If the court has sufficient evidence to conclude the child is an Indian child, then the notification and rights under the Indian Child Welfare Act apply.
Comment The Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107, requires the court to determine if any participant has reason to know whether the child is an Indian child. The Act and federal regulations define an Indian child as one who is 1) unmarried, 2) under eighteen, and 3) a tribal member or eligible for tribal membership. 25 U.S.C. § 1903(4) and 25 C.F.R. § 23.2. The regulations place the burden on the court to ask every participant if there is any reason to know whether the child is an Indian child and to inform each participant of their ongoing obligation to inform the court if they subsequently learn of any reason to believe the child is an Indian child. If the court finds there is reason to believe the child is an Indian child, certain notification and rights become effective. See the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. Part 23.
The court must make a finding, on the record, as to whether the child is an Indian child.
In the event the court has reason to believe the child is an Indian child but does not have sufficient evidence to make a finding either way, the protections and notifications of the Act apply until such a time the record supports a determination that the child is not an Indian child. The tribe has exclusive jurisdiction and the authority to determine whether a child is either a member of the tribe or eligible for tribal membership. Specific notification and rights become applicable once a court makes a judicial determination that the child is an Indian child. See the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. Part 23.
Official Note: Rule 1148 adopted , 2017, effective , 2017.
Committee Explanatory Reports:
Final Report explaining the adoption of Rule 1205 published with the Court's Order at Pa.B. ( , 2017).
PART B. EMERGENCY CUSTODY Rule 1210. Order for Protective Custody.
A. Application of [order] Order. The application for a court order of protective custody may be orally made; however, the request shall be reduced to writing within twenty-four hours. The request shall set forth reasons for the need of protective custody.
B. Finding of [court] Court.
* * * * * 2) At the time the court issues a protective custody order, the court shall inquire as to whether family finding efforts pursuant to Rule 1149 have been initiated by the county agency, and as to the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. All responses must be placed on the record.
* * * * * C. Law [enforcement] Enforcement. The court may authorize a search of the premises by law enforcement or the county agency so that the premises may be entered into without authorization of the owner for the purpose of taking a child into protective custody.
D. Contents of [order] Order. The court order shall include:
* * * * * 7) a finding whether the reasons for keeping the child in shelter care and that remaining in the home is contrary to the welfare and best interests of the child; [and]
8) findings and orders related to the requirements of Rule 1149 regarding family finding[.]; and
9) findings as to whether there is reason to know the child is an Indian child pursuant to Rule 1205.
E. Execution of [order] Order. The court shall specify:
* * * * *
Comment * * * * * See also In re Petition to Compel Cooperation with Child Abuse Investigation, 875 A.2d 365 (Pa. Super. [Ct.] 2005).
The court is also to determine if any participant has reason to know whether the child is an Indian child. Paragraph (B)(2) and (D)(9) are intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Pursuant to paragraph (D)(8), the county agency should be looking for family and kin as a resource to aid and assist the family to prevent removal of the child from the home. When removal of the child is necessary, placement with family and kin will help reduce the potential trauma of the removal from the home. See Rule 1149 regarding family finding requirements.
Official Note: Rule 1210 adopted August 21, 2006, effective February 1, 2007. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1210 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1210 published with the Court's Order at Pa.B. ( , 2017).
PART C. SHELTER CARE Rule 1240. Shelter Care Application.
A. Filings. A shelter care application may be oral or in writing. If oral, within twenty-four hours of exercising protective custody pursuant to Rule 1210, the county agency shall file a written shelter care application.
B. Application [contents] Contents. Every shelter care application shall set forth:
* * * * * 8) the signature of the applicant and the date of the execution of the application; [and]
9) the whereabouts of the child unless the county agency has determined it would pose a risk to the safety of the child or the guardian, or disclosure is prohibited by the court[.]; and
10) a statement as to the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
Comment * * * * * See Rule 1149 regarding family finding requirements.
Paragraph (B)(10) is intended to aid the court in complying with the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Official Note: Rule 1240 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1240 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1240 published with the Court's Order at Pa.B. ( , 2017).
Rule 1242. Shelter Care Hearing.
A. Informing of [rights] Rights. Upon commencement of the hearing, the court shall ensure that:
* * * * * B. Manner of [hearing] Hearing.
* * * * * C. Findings. The court shall determine whether:
* * * * * 4) a person, other than the county agency, submitting a shelter care application, is a party to the proceedings; [and]
5) there are any special needs of the child that have been identified and that the court deems necessary to address while the child is in shelter care[.]; and
6) the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
D. Prompt [hearing] Hearing. The court shall conduct a hearing within seventy-two hours of taking the child into protective custody. The parties shall not be permitted to waive the shelter care hearing.
E. Court [order] Order. At the conclusion of the shelter care hearing, the court shall enter a written order setting forth:
* * * * *
Comment * * * * * Pursuant to 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.
Pursuant to paragraph (C)(6) the court is also to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. Paragraph (C)(6) is intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Under paragraph (D), the court is to ensure a timely hearing. Nothing in paragraph (D) is intended to preclude the use of stipulations or agreements among the parties, subject to court review and acceptance at the shelter care hearing.
* * * * * Official Note: Rule 1242 adopted August 21, 2006, effective February 1, 2007. Amended April 21, 2011, effective July 1, 2011. Amended April 29, 2011, effective July 1, 2011. Amended July 13, 2015, effective October 1, 2015. Amended May 16, 2017, effective July 1, 2017. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1242 published with the Court's Order at 47 Pa.B. 3078 (June 3, 2017).
Final Report explaining the amendments to Rule 1242 published with the Court's Order at Pa.B. ( , 2017).
CHAPTER 13. PRE-ADJUDICATORY PROCEDURES
PART C. PETITION Rule 1330. Petition: Filing, Contents, Function, Aggravated Circumstances.
* * * * * B. Petition [contents] Contents. Every petition shall set forth plainly:
* * * * * 4) [if a child is Native American, the child's Native American history or affiliation with a tribe;] whether there is reason to know the child is an Indian child;
* * * * * C. Aggravated [circumstances] Circumstances. A motion for finding of aggravated circumstances may be brought in the petition pursuant to Rule 1701(A).
Comment * * * * * For the safety or welfare of a child or a guardian, the court may order that the addresses of the child or a guardian not be disclosed to specified individuals.
Paragraph (B)(4) is intended to aid the court in complying with the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Pursuant to paragraph (B)(6), when the county agency is seeking placement, the petition is to include the reasonable efforts made to prevent placement, including efforts for family finding, and why there are no less restrictive alternatives available. See Rule 1149 for family finding requirements. See also Rule 1242(C)(2) & (3)(b) & (c) and Comments to Rules 1242, 1409, 1515, [1608, 1609, 1610, and 1611] 1608—1611 for reasonable efforts determinations.
* * * * * Official Note: Rule 1330 adopted August 21, 2006, effective February 1, 2007. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1330 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1330 published with the Court's Order at Pa.B. ( , 2017).
CHAPTER 14. ADJUDICATORY HEARING Rule 1408. Findings on Petition.
The court shall enter findings, within seven days of hearing the evidence on the petition or accepting stipulated facts by the parties:
1) by specifying which, if any, allegations in the petition were proved by clear and convincing evidence; [and]
2) its findings as to whether the county agency has reasonably engaged in family finding as required pursuant to Rule 1149[.]; and
3) its findings as to the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
Comment * * * * * Pursuant to paragraph (2), the court is to make a determination whether the county agency has reasonably engaged in family finding in the case. The county agency will be required to report its diligent family finding efforts at subsequent hearings. See Rule 1149 for requirements of family finding. See also Rules 1210(D)(8), 1242(E)(3), 1512(D)(1)(h), 1514(A)(4), 1608(D)(1)(h), and 1610(D) and their Comments for the court's findings as to the county agency's satisfaction of the family finding requirements and Rules 1242(E)(3), 1409(C), 1609(D), and 1611(C) and Comments to Rules 1242, 1409, 1512, 1514, 1515, [1608, 1609, 1610, and 1611] 1608—1611 on the court's orders.
The court is also to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. Paragraph (3) is intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Official Note: Rule 1408 adopted August 21, 2006, effective February 1, 2007. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1408 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1408 published with the Court's Order at Pa.B. ( , 2017).
Rule 1409. Adjudication of Dependency and Court Order.
A. Adjudicating the [child dependent] Child Dependent. Once the court has made its findings under Rule 1408, the court shall enter an order whether the child is dependent.
* * * * * C. Court [order] Order. The court shall include the following in its court order:
* * * * *
Comment Before the court can find a child to be dependent, there must be clear and convincing evidence in support of the petition. The burden of proof is on the petitioner. The court's inquiry is to be comprehensive and its findings are to be supported by specific findings of fact and a full discussion of the evidence. In re LaRue, [244 Pa. Super. 218,] 366 A.2d 1271 (Pa. Super. 1976). See also In re Frank W.D., Jr., [315 Pa. Super. 510,] 462 A.2d 708 (Pa. Super. 1983); In re Clouse, [244 Pa. Super. 396,] 368 A.2d 780 (Pa. Super. 1976). The evidence must support that the child is dependent. In the Matter of DeSavage, [241 Pa. Super. 174,] 360 A.2d 237 (Pa. Super. 1976). [The court is not free to apply the best interest of the child standard as the requirements of the Juvenile Act, 42 Pa.C.S. § 6341(c), require clear and convincing evidence that the child is dependent is the proper standard.] The court must apply the clear and convincing evidence standard (the best interest of the child standard) that the child is dependent per the requirements of the Juvenile Act, 42 Pa.C.S. § 6341(c). In re Haynes, [326 Pa. Super. 311,] 473 A.2d 1365 (Pa. Super. 1983). A child, whose non-custodial parent is ready, willing, and able to provide adequate care for the child, cannot be found dependent on the basis of lacking proper parental care and control. In re M.L., [562 Pa. 646,] 757 A.2d 849 (Pa. 2000). A trial court has the authority to transfer custody or modify custody to the child's non-custodial parent without a finding of dependency if sufficient evidence of dependency would have existed but for the availability of the non-custodial parent. In re Justin S., [375 Pa. Super. 88,] 543 A.2d 1192 (Pa. Super. 1988).
* * * * * If the requirements of Rule 1149 regarding family finding have not been met, the court is to make necessary orders to ensure compliance by enforcing this legislative mandate. See 62 P.S. § 1301 et seq. See also Rules 1242(E)(3) and 1609(D) and Comments to Rules 1242, 1408, 1512, 1514, 1515, [1608, 1609, 1610, and 1611] 1608—1611.
The court is also to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. See the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Official Note: Rule 1409 adopted August 21, 2006, effective February 1, 2007. Amended July 13, 2015, effective October 1, 2015.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1409 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to the comment to Rule 1409 published with the Court's Order at Pa.B. ( , 2017).
CHAPTER 15. DISPOSITIONAL HEARING
PART B. DISPOSITIONAL HEARING AND AIDS Rule 1512. Dispositional Hearing.
A. Manner of [hearing] Hearing. The court shall conduct the dispositional hearing in an informal but orderly manner.
* * * * * C. Duties of the [court] Court. The court shall determine on the record whether the parties have been advised of the following:
* * * * * D. Court's [findings] 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:
* * * * * j) 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]
k) a visitation schedule, including any limitations[.]; and
l) findings as to the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
2) The court shall state on the record in open court or enter into the record through the dispositional order, findings pursuant to Rule 1514, if the child is placed.
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.
* * * * * Pursuant to paragraph (D)(1)(k), 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.
Pursuant to paragraph (D)(1)(l), the court is also to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. Paragraph (D)(1)(l) is intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
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. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1512 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1512 published with the Court's Order at Pa.B. ( , 2017).
Rule 1514. Dispositional Finding Before Removal from Home.
A. Required [findings] Findings. Prior to entering a dispositional order removing a child from the home, the court shall state on the record in open court the following specific findings:
* * * * * 4) The county agency has reasonably satisfied the requirements of Rule 1149 regarding family finding; [and]
5) One of the following:
* * * * * 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[.]; and
6) the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
B. Aggravated [circumstances] 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)(5)(a) through (c) is not necessary.
Comment * * * * * Pursuant to paragraph (A)(4), the court is to determine whether the county agency has reasonably satisfied the requirements of Rule 1149 regarding family finding. If the county agency has failed to meet the diligent family finding efforts requirements of Rule 1149, the court is to utilize its powers to enforce this legislative mandate. See 62 P.S. § 1301 et seq. See also Rules 1210(D)(8), 1242(E)(3), 1409(C), 1609(D), and 1611(C) and Comments to Rules 1242, 1408, 1409, 1512, 1515, [1608, 1609, 1610, and 1611] 1608—1611.
Pursuant to paragraph (A)(6), the court is to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. Paragraph (A)(6) is intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Official Note: Rule 1514 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1514 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1514 published with the Court's Order at Pa.B. ( , 2017).
Rule 1515. Dispositional Order.
* * * * * B. Transfer of [custody] Custody. If the court decides to transfer 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:
* * * * *
Comment * * * * * If the requirements of Rule 1149 regarding family finding have not been met, the court is to make necessary orders to ensure compliance by enforcing this legislative mandate. See 62 P.S. § 1301 et seq. See also Rules 1210(D)(8), 1242(E)(3), 1409(C), 1609(D), and 1611(C) and Comments to Rules 1242, 1408, 1409, 1512, 1514, [1608, 1609, 1610, and 1611] 1608—1611. 45 C.F.R. § 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.
The court is also to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursu-ant to the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Dispositional orders should comport in substantial form and content to the 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.pacourts.us/forms/dependency-forms.
See In re Tameka M., [525 Pa. 348,] 580 A.2d 750 (Pa. 1990).
Official Note: Rule 1515 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1515 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1515 published with the Court's Order at Pa.B. ( , 2017).
CHAPTER 16. POST-DISPOSITIONAL PROCEDURES
PART B(2). PERMANENCY HEARING Rule 1608. Permanency Hearing.
A. Purpose and [timing of hearing] Timing of Hearing. For every case, the court shall conduct a permanency hearing at least every six months for purposes of determining or reviewing:
* * * * * D. Court's [findings] Findings.
1) Findings at all six-month hearings. At each permanency hearing, the court shall enter its findings and conclusions of law into the record and enter an order pursuant to Rule 1609. On the record in open court, the court shall state:
* * * * * p) whether sufficient steps have been taken by the county agency to ensure the child has been provided regular, ongoing opportunities to engage in age-appropriate or developmentally-appropriate activities, including:
i) consulting the child in an age-appropriate or developmentally-appropriate manner about the opportunities to participate in activities; and
ii) identifying and addressing any barriers to participation; [and]
q) whether the visitation schedule for the child with the child's guardian is adequate, unless a finding is made that visitation is contrary to the safety or well-being of the child[.]; and
r) the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
2) Another Planned Permanent Living Arrangement (APPLA) for Children Sixteen Years of Age or Older. APPLA shall not be utilized for any child under the age of sixteen. At each permanency hearing for a child who is sixteen years or older and has a permanency goal of APPLA, the following additional considerations, inquiry, and findings shall be made by the court:
* * * * *
Comment * * * * * In addition to the permanency hearing contemplated by this rule, courts may also conduct additional [and/or] or more frequent intermittent review hearings or status conferences that address specific issues based on the circumstances of the case and assist the court in ensuring timely permanency.
* * * * * Pursuant to paragraph (D)(1)(o), the county agency is to testify and enter evidence into the record on how it took sufficient steps to ensure the caregiver is exercising the reasonable and prudent parent standard. For the definition of ''caregiver'' and the ''reasonable and prudent parent standard,'' see Rule 1120. Pursuant to paragraph (D)(1)(p), when documenting its steps taken, the county agency is to include how it consulted with the child in an age-appropriate or developmentally-appropriate manner about the opportunities of the child to participate in activities. For the definition of ''age-appropriate or developmentally-appropriate,'' see Rule 1120. These additions have been made to help dependent children have a sense of normalcy in their lives. These children should be able to participate in extracurricular, enrichment, cultural, and social activities without having to consult caseworkers and ask the court's permission many days prior to the event. See also Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183), 42 U.S.C. §§ 675 and 675a (2014).
Pursuant to paragraph (D)(1)(r), the court is to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. Paragraph (D)(1)(r) is intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
Pursuant to paragraph (D)(2), there are additional considerations, inquiries, and findings when the court conducts a permanency hearing for a child, who is sixteen years of age or older and has a permanency plan of APPLA. APPLA should only be utilized as a permanency plan when all other alternatives have been exhausted. Even after exhaustive efforts have been made, the county agency should identify at least one supportive adult to be involved in the life of the child. Diligent efforts to search for relatives, guardians, adoptive parents, or kin are to be utilized. See Rule 1149 on family finding. Independent living services should also be addressed. Under paragraph (D)(2)(a)(i)(B), a fit and willing relative may include adult siblings.
* * * * * 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. Amended April 29, 2011, effective July 1, 2011. Amended October 21, 2013, effective December 1, 2013. Amended July 13, 2015, effective October 1, 2015. Amended December 9, 2015, effective January 1, 2016. Amended June 14, 2016, effective August 1, 2016. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1608 published with the Court's Order at 46 Pa.B. 3416 (July 2, 2016).
Final Report explaining the amendments to Rule 1608 published with the Court's Order at Pa.B. ( , 2017).
Rule 1609. Permanency Hearing Orders.
* * * * * B. Determination [made] Made. The court's order shall reflect a determination made pursuant to Rule 1608(D).
C. Transfer of [custody] Custody. If the court decides to transfer 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 on [family finding] Family Finding.
1) The court order shall indicate whether family finding efforts made by the county agency were reasonable;
2) If the family finding efforts were not reasonable, the court shall order the county agency to engage in family finding prior to the next permanency hearing;
E. Orders [concerning education] Concerning 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.
F. Orders [concerning health care and disability] 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.
G. Guardians. The permanency order shall include any conditions, limitations, restrictions, and obligations imposed upon the guardian.
H. Indian Child. The permanency order shall include the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205.
Comment * * * * * 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 (H), the court is to determine the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child pursuant to Rule 1205. Paragraph (H) is intended to implement the requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107. See Rule 1205.
See Rule 1611 for permanency hearing orders for children over the age of eighteen.
Official Note: Rule 1609 adopted August 21, 2006, effective February 1, 2007. Amended April 29, 2011, effective July 1, 2011. Amended October 21, 2013, effective December 1, 2013. Amended July 13, 2015, effective October 1, 2015. Amended , 2017, effective , 2017.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 1609 published with the Court's Order at 45 Pa.B. 3987 (July 25, 2015).
Final Report explaining the amendments to Rule 1609 published with the Court's Order at Pa.B. ( , 2017).
REPORT
Proposed Adoption of Pa.R.J.C.P. 1205; Proposed Amendment of Pa.R.J.C.P. 1120, 1210, 1240, 1242, 1330, 1408, 1409, 1512, 1514, 1515, 1608, and 1609 The Juvenile Court Procedural Rules Committee proposes a package to improve the Rules of Juvenile Court Procedure as they relate to the federal Indian Child Welfare Act and Bureau of Indian Affairs regulations. The package contains two components: 1) a new Rule 1205 to implement the Indian Child Welfare Act (''Act''), 25 U.S.C. § 1901 et seq. and the Bureau of Indian Affairs regulations, 25 C.F.R. § 23.107; and 2) amendments of Rules 1120, 1210, 1240, 1242, 1330, 1408, 1409, 1512, 1514, 1515, 1608, and 1609 to incorporate and reference the new Rule 1205. These changes are intended to reflect the requirements of the Act and federal regulations.
Indian Child Welfare Act
Briefly, the Act creates a policy for the United States ''to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimal Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.'' 25 U.S.C. § 1902. The Act provides ''[a]n Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child. . . .'' Id. § 1911.
In 2016, the Bureau of Indian Affairs promulgated regulations relating to the Act. The regulations require state courts to determine on the record, at the initial proceeding, whether a child subject to a ''child custody proceeding'' is an Indian child. See also 25 U.S.C. § 1903; 25 C.F.R § 23.2 (defining ''child custody proceeding''); 25 C.F.R. § 23.103 (identifying proceedings in which the Act applies). The courts must also advise the participants of an ongoing obligation to inform the court if any of them subsequently learns the child is an Indian child. 25 C.F.R. § 23.107. If there is reason to believe the child is an Indian child, several protections outlined in the Act and regulations must be afforded to the child.
The Committee believes it is important to update the Rules to reflect these procedural requirements. Accordingly, the Committee proposes a new Rule 1205 and amendments to Rules 1120, 1210, 1240, 1242, 1330, 1408, 1409, 1512, 1514, 1515, 1608, and 1609 to require juvenile courts at the initial proceeding and thereafter to inquire as to the efforts made by the county agency to determine whether the child is an Indian child and whether any participant has reason to know the child is an Indian child. The court would be required to advise the participants of an ongoing obligation to inform the court if any of them subsequently learn the child is an Indian child.
Reader may observe that federal requirements include only ''determination'' and ''advisement'' components; whereas, the proposed state procedures include ''inquiry,'' ''determination,'' and ''advisement'' components. The addition of the ''inquiry'' aspect in the Juvenile Court Procedural Rules for Indian children was intended to be consistent with the court's responsibility to inquire as to the efforts made by the county agency to comply with family finding requirements. See Pa.R.J.C.P. 1149(A).
The Committee invites all comments, concerns, and suggestions regarding this rulemaking proposal.
[Pa.B. Doc. No. 17-1202. Filed for public inspection July 21, 2017, 9:00 a.m.]
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