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PA Bulletin, Doc. No. 21-2052

THE COURTSTHE COURTS

Title 237—JUVENILE RULES

PART I. RULES

[ 237 PA. CODE CHS. 2, 3 AND 4 ]

Order Amending Rules 240, 391 and 404 of the Pennsylvania Rules of Juvenile Court Procedure; No. 891 Supreme Court Rules Doc.

[51 Pa.B. 7629]
[Saturday, December 11, 2021]

Order

Per Curiam

 And Now, this 30th day of November, 2021, upon the recommendation of the Juvenile Court Procedural Rules Committee, the proposal having been published for public comment at 50 Pa.B. 3836 (August 1, 2020):

 It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rules of Juvenile Court Procedure 240, 391, and 404 are amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective on April 1, 2022.

Annex A

TITLE 237. JUVENILE RULES

PART I. RULES

Subpart A. DELINQUENCY MATTERS

CHAPTER 2. COMMENCEMENT OF PROCEEDINGS, ARREST PROCEDURES, WRITTEN ALLEGATION, AND PRE-ADJUDICATORY DETENTION

PART D. PRE-ADJUDICATORY DETENTION

Rule 240. Detention of Juvenile.

 A. Detention [requirements] Requirements. If a juvenile is brought before the court or delivered to a detention facility designated by the court, the juvenile probation officer immediately shall:

 1) examine the written allegation;

 2) make an investigation, which may include an intake conference with the juvenile, the juvenile's attorney, guardian, or other interested and informed adult; and

 3) release the juvenile, unless it appears that the juvenile's detention is warranted.

 B. Filing of [petition] Petition. The release of the juvenile shall not prevent the subsequent filing of a petition.

 C. Prompt [hearing] Hearing. If the juvenile is not released, a detention hearing shall be held no later than [seventy-two] 72 hours after the juvenile is placed in detention. Neither the juvenile nor the juvenile's attorney shall be permitted to waive the detention hearing.

 D. Time [restrictions] Restrictions. Except as provided in [paragraphs (D)(1) and (D)(2)] this paragraph, if the adjudicatory hearing is not held [or notice of request for transfer is not submitted within the ten-day period as specified in Rules 391 and 404], as required by Rule 404(A), or a transfer hearing is not held, as required by Rule 391(B), the juvenile shall be released.

 1) [A] Upon motion, a juvenile may be detained for an additional single period not to exceed [ten] 10 days when the court determines that:

 a) evidence material to the case is unavailable;

 b) due diligence to obtain such evidence has been exercised; and

 c) there are reasonable grounds to believe that such evidence will be available at a later date[; and].

 [d) the detention of the juvenile would be warranted.]

 2) [A] Upon motion, a juvenile may be detained for [successive ten-day intervals] additional periods, each of which shall not exceed 10 days, if the delay is caused by the juvenile. The court shall state on the record if failure to hold the hearing resulted from delay caused by the juvenile. Delay caused by the juvenile shall include, but not be limited to:

 a) delay caused by the unavailability of the juvenile or the juvenile's attorney;

 b) delay caused by any continuance granted at the request of the juvenile [or the juvenile's attorney]; or

 c) delay caused by the unavailability of a witness resulting from conduct by or on behalf of the juvenile.

 3) Whenever extended detention is sought under this paragraph, the court shall consider whether detention remains warranted.

Comment

 If a juvenile is detained, the guardian should be notified immediately. See Rules 220 (Procedure in Cases Commenced by Arrest Without Warrant) and 313(B) (Detention from Intake—Notice to Guardian) for notification of the guardian.

 Nothing in paragraph (C) is intended to preclude the use of stipulations or agreements among the parties, subject to court review and acceptance at the detention hearing.

 Under paragraph (D)(2), if the juvenile causes delay, the juvenile may continue to be held in detention. [The additional period] Additional periods of detention should not individually exceed ten days. [The court may continue such detention for successive ten-day intervals if the juvenile caused the delay.] The time restrictions of paragraph (D) apply to a juvenile who is placed in detention, even if previously released.

 [For time restrictions on detention for juveniles scheduled for a transfer hearing to criminal proceedings, see Rule 391.]

 For motions for continuance, see Rule 122.

 Under paragraph (D)(3), whenever extension of a juvenile's detention may result, the court should consider whether continued detention is warranted and whether a less restrictive alternative to secured detention is available. Factors for determining whether continued detention is warranted include: protection of the juvenile; protection of others or their property; the risk the juvenile may abscond or be removed from the court's jurisdiction; and whether the juvenile has a parent, guardian, or custodian able to provide supervision and care for the juvenile and return the juvenile to the court when required. See 42 Pa.C.S. § 6325.

 For statutory provisions on detention, see 42 Pa.C.S. §§ 6325, 6331, 6335. For the Juvenile Court Judges Commission's Detention Standards, see 37 Pa. Code §§ 200.101 et seq. ([2003] 2007).

 If a juvenile is detained, the juvenile is to be placed in a detention facility, which does not include a county jail or state prison. See Rule 120 and its Comment for definition of ''detention facility.''

 Official Note: Rule 240 adopted April 1, 2005, effective October 1, 2005. Amended June 28, 2013, effective immediately. Amended May 16, 2017, effective July 1, 2017. Amended November 30, 2021, effective April 1, 2022.

Committee Explanatory Reports:

 Final Report explaining the provisions of Rule 240 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).

 Final Report explaining the amendments to Rule 240 published with the Court's Order at 43 Pa.B. 3938 (July 13, 2013).

 Final Report explaining the amendments to Rule 240 published with the Court's Order at 47 Pa.B. 3078 (June 3, 2017).

 Final Report explaining the amendments to Rule 240 published with the Courts' Order at 51 Pa.B. 7629 (December 11, 2021).

CHAPTER 3. PRE-ADJUDICATORY PROCEDURES

PART G. TRANSFER FOR CRIMINAL PROSECUTION

Rule 391. Time Restrictions for Detention of Juveniles Scheduled for Transfer Hearing.

 A. Generally. The detention requirements of Rules 240, 241, 242, and 243 shall be followed for juveniles scheduled for a transfer hearing [except for the time restrictions provided in paragraph (B) of this rule].

 B. Time Restrictions. If the transfer hearing is not held within [ten] 10 days of the filing of the notice of request for transfer to criminal proceedings, the juvenile shall be released [except as provided in paragraphs (B)(1) and (B)(2)] unless the exceptions of Rule 240(D) apply.

 [1) A juvenile may be detained for an additional single period not to exceed ten days when the court determines:

 a) that evidence material to the case is unavailable, including a psychological or psychiatric evaluation;

 b) that due diligence to obtain such evidence or evaluation has been exercised;

 c) that there are reasonable grounds to believe that such evidence or evaluation will be available at a later date; and

 d) that the detention of the juvenile would be warranted.

 2) A juvenile may be detained for successive ten-day intervals if the result of delay is caused by the juvenile. The court shall state on the record if failure to hold the hearing resulted from delay caused by the juvenile. Delay caused by the juvenile shall include, but not be limited to:

 a) delay caused by the unavailability of the juvenile or the juvenile's attorney;

 b) delay caused by any continuance granted at the request of the juvenile or the juvenile's attorney; or

 c) delay caused by the unavailability of a witness resulting from conduct by or on behalf of the juvenile.]

Comment

 The filing of a request for transfer to criminal proceedings resets the [ten-day] 10-day clock for a hearing for the juvenile in detention. The transfer hearing is to be held within [ten] 10 days of the filing of a request for transfer to criminal proceedings, not [ten] 10 days from the date of detention for the juvenile. This time requirement is different than the time requirement for the adjudicatory hearing under Rule 240(D). See Rule 800.

 [Under Paragraph (B)(1), the case may be extended for only one single period of ten days. However, under paragraph (B)(2) when the juvenile causes delay, the case may be extended for successive ten-day intervals.]

 Official Note:  Rule 391 adopted April 1, 2005, effective October 1, 2005. Amended November 30, 2021, effective April 1, 2022.

Committee Explanatory Reports:

 Final Report explaining the provisions of Rule 391 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).

 Final Report explaining the amendments to Rule 391 published with the Courts' Order at 51 Pa.B. 7629 (December 11, 2021).

CHAPTER 4. ADJUDICATORY HEARING

Rule 404. Prompt Adjudicatory Hearing.

 A. Detained [juvenile] Juvenile. If the juvenile is detained, an adjudicatory hearing shall be held within [ten] 10 days of the filing of the petition. If the adjudicatory hearing is not held within [ten] 10 days, the juvenile shall be released unless the exceptions of Rule 240(D) apply.

 B. Non-detained [juvenile] Juvenile. If the juvenile is not detained, the adjudicatory hearing shall be held within a reasonable time.

 [C. Juveniles transferred from criminal proceedings. Notwithstanding the provisions of paragraphs (A) and (B), if a petition was filed pursuant to Rule 337, an adjudicatory hearing shall be held within ten days of the filing of the petition.]

Comment

 The ''filing of a petition'' in paragraph (A) includes petitions filed pursuant to Rule 337 if the juvenile is detained following transfer from criminal proceedings.

 Official Note: Rule 404 adopted April 1, 2005, effective October 1, 2005. Amended July 31, 2012, effective November 1, 2012. Amended November 30, 2021, effective April 1, 2022.

Committee Explanatory Reports:

 Final Report explaining the provisions of Rule 404 published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).

 Final Report explaining the amendments to Rule 404 published with the Court's Order at 42 Pa.B. 5350 (August 18, 2012).

 Final Report explaining the amendments to Rule 404 published with the Courts' Order at 51 Pa.B. 7629 (December 11, 2021).

ADOPTION REPORT

Amendment of Pa.R.J.C.P. 240, 391, and 404

 On November 30, 2021, the Supreme Court amended Pennsylvania Rules of Juvenile Court Procedure 240, 391, and 404 to clarify procedures to permit the extended detention of a juvenile when procedural requirements are not met. The Juvenile Court Procedural Rules Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, Comment. The statements contained herein are those of the Committee, not the Court.

 The Juvenile Act permits a juvenile to be detained prior to an adjudicatory hearing. See 42 Pa.C.S. § 6325. The Pennsylvania Rules of Juvenile Court Procedure implement this aspect of the Juvenile Act. See Pa.R.J.C.P. 240—243. Pre-adjudicatory detention of a juvenile is typically brief because the juvenile is expected to receive a prompt adjudicatory hearing within 10 days of the filing of a petition. See Pa.R.J.C.P. 404(A).

 If a detained juvenile does not receive a prompt adjudicatory hearing, then the juvenile is to be immediately released. See 42 Pa.C.S. § 6335(a); Pa.R.J.C.P. 404(A). However, there are two exceptions to immediate release when the adjudicatory hearing is delayed due to: 1) presently unavailable evidence and the juvenile's life would be in danger, the community would be endangered, or the juvenile will fail to appear at the hearing; or 2) the juvenile. See 42 Pa.C.S. § 6335(a), (f). These exceptions are generally codified at Pa.R.J.C.P. 240(D)(1)-(D)(2).

 When a timely hearing cannot be held and either exception is applicable, the juvenile is not immediately released. Instead, the juvenile court must decide whether to release the juvenile or continue to detain the juvenile. See 42 Pa.C.S. § 6335(a), (f) (permitting, but not requiring, continued detention); Pa.R.J.C.P. 240(D) (same).

 The Committee published for comment several amendments to the rules governing extended pre-adjudicatory detention. See 50 Pa.B. 3836 (August 1, 2020). First, Rule 391(B) states ''if the transfer hearing is not held within ten days of the filing of the notice of request for transfer to criminal proceedings, the juvenile shall be released except as provided in paragraphs (B)(1) and (B)(2).'' The text of paragraphs (B)(1) and (B)(2) are almost identical to Rule 240(D) with the exception of ''including a psychological or psychiatric evaluation'' in paragraph (B)(1)(a). Rather than repeat the language of Rule 240(D), the Committee proposed removing the language from Rule 391(B)(1) and (B)(2) and refer the reader to Rule 240(D). A similar approach had already been taken with Rule 404(A).

 Second, Rule 240(D) states ''except as provided in paragraph (D)(1) and (D)(2), if the adjudicatory hearing is not held or notice of request for transfer is not submitted within the ten-day period as specified in Rules 391 and 404, the juvenile shall be released.'' It was apparent to the Committee that the triggering event for continued detention when a transfer is initiated differs between Rule 391(B) and Rule 240(D). Rule 391(B) is triggered when a transfer hearing is untimely whereas Rule 240(D) is triggered when the notice of request for a transfer hearing is untimely. The Committee believed that the triggering event should be the transfer hearing, not the notice. Therefore, the Committee proposed amending Rule 240(D) to include the transfer hearing and remove mention of the notice.

 Third, the Committee proposed introducing a motion requirement to Rule 240(D). This requirement is not separate from that for seeking a continuance, but part of a motion for continuance pursuant to Rule 122. The Committee also proposed expanding the court's consideration of the necessity for continued detention anytime that continued detention is sought. Finally, the Committee proposed removing the juvenile's attorney as a cause for the juvenile's continued detention, as set forth in Rule 240(D)(2)(a)-(b).

 In response to the proposal, concern was expressed that the proposed amendment of Rule 240(D)(2)(a), which would result in the juvenile's immediate release for delays attributable to a juvenile's attorney's unavailability, may have ventured beyond procedure and into substantive matters. Further, there was a potential public safety concern if an attorney's unavailability may otherwise result in the release of a juvenile who may pose a threat to the public.

 The Committee acknowledges 42 Pa.C.S. § 6335(f)(1) is unambiguous: if a juvenile's attorney is unavailable, then the juvenile can be further detained. Subjecting a juvenile to further detention is a substantive matter involving one's liberty interest. Any remedy to the application of § 6335(f)(1) lies with the General Assembly through amendment of the Juvenile Act rather than through rulemaking. Accordingly, the proposed amendment of Rule 240(D)(2)(a) was removed from the proposal.

 Post-publication, the Committee considered the interplay of Pa.R.J.C.P. 240(D) and Pa.R.J.C.P. 404. The time requirements for an adjudicatory hearing pursuant to paragraphs (A) and (B) of Pa.R.J.C.P. 404 (Prompt Adjudicatory Hearing) pivot on whether a juvenile is detained. However, paragraph (C) treats decertified juveniles differently: ''Notwithstanding the provisions of paragraphs (A) and (B), if a petition was filed pursuant to Rule 337, an adjudicatory hearing shall be held within ten days of the filing of the petition.''

 Paragraph (C) did not account for whether a juvenile was being detained and often decertifications are complicated cases involving severe types of offenses. The Committee considered whether the hearing deadline should also pivot on whether the juvenile is detained, noting that the Comment to Pa.R.J.C.P. 337 (Filing of Petition After Case has been Transferred from Criminal Proceedings) states: ''If the juvenile is detained, an adjudicatory hearing is to be held within ten days of the filing of the petition. See also Rule 404.'' Additionally, paragraph (C) did not acknowledge that the youth may have been released on bail in criminal court and likewise might not be placed in detention by the juvenile court.

 The Committee recommended removing paragraph (C) from Rule 404 so that juveniles transferred from criminal court would be subject to either paragraph (A) or paragraph (B) depending on their detention status. A Comment was added to instruct the reader.

 Additional commentary was added post-publication to Pa.R.J.C.P. 240 setting forth the factors to be considered when the court considers whether continued detention is warranted.

 These amendments become effective April 1, 2022.

[Pa.B. Doc. No. 21-2052. Filed for public inspection December 10, 2021, 9:00 a.m.]


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