THE COURTS
Title 237—JUVENILE RULES
PART I. RULES
[ 237 PA. CODE CH. 11 ]
Order Approving the Amendment of Rule 1128 of the Pennsylvania Rules of Juvenile Court Procedure; No. 851 Supreme Court Rules Doc.
[50 Pa.B. 5840]
[Saturday, October 24, 2020]
Order Per Curiam
And Now, this 14th day of October, 2020, upon the recommendation of the Juvenile Court Procedural Rules Committee, the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 1128 of the Pennsylvania Rules of Juvenile Court Procedure is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective on January 1, 2021.
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart B. DEPENDENCY MATTERS
CHAPTER 11. GENERAL PROVISIONS
PART A. BUSINESS OF COURTS Rule 1128. Presence at Proceedings.
A) General Rule. All parties, including the child, shall be present at any proceeding unless the exceptions of paragraph (B) apply.
B) Exceptions.
1) Absence from [proceedings] Proceedings. The court may proceed in the absence of a party upon good cause shown except that in no case shall a hearing occur in the absence of a child's attorney. If a child has a guardian ad litem and legal counsel, both attorneys shall be present.
2) Exclusion from [proceedings] Proceedings. A party may be excluded from a proceeding only for good cause shown. If a party is so excluded, counsel for the party shall be permitted to be present.
C) Advanced [communication technology] Communication Technology. A child or guardian may appear by utilizing advanced communication technology pursuant to Rule 1129.
D) [Order appearance] Court-Ordered Appearance. The court may order any person having the physical custody or control of a child to bring the child to any proceeding.
Comment 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 by individual circumstances, a child should [appear] be present in court. See also Pa.R.J.C.P. 1129(A)(2) (child shall appear in person at least every six months unless presence is excused). 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. Because a child may feel uncomfortable while attending proceedings, the court should take measures to ensure that the child understands the courtroom to be a place of safety and security.
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 (Pa. Super. 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; amended October 14, 2020, effective January 1, 2021.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1128 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).
Final Report explaining the amendments to Rule 1128 published with the Court's Order at 41 Pa.B. [2327] 2326 (May 7, 2011).
Final Report explaining the amendments to Rule 1128 published with the Court's Order at 50 Pa.B. 5841 (October 24, 2020).
FINAL REPORT1
Amendment of Pa.R.J.C.P. 1128 On October 14, 2020, the Supreme Court amended Rule of Juvenile Court Procedure 1128 to clarify requirements for the presence of children at dependency proceedings.
Upon request, the Committee reviewed Pa.R.J.C.P. 1128 (Presence at Proceedings) to consider whether the rule invited a practice whereby children of a certain age were categorically excused from being present in court. While the rule did not encourage excusing children, the Committee recommended the rule be refined to emphasize the importance of a child's appearance and the need to consider a child's individual circumstances when deciding whether to excuse the child from a proceeding.
Pa.R.J.C.P. 1128(A) generally requires all parties to be present at dependency proceedings. This paragraph is amended to specifically include children under the general requirement. Pa.R.J.C.P. 1120 (Definitions) defines a ''party'' as ''a person or the county agency who has standing to participate in the proceedings but nothing in these Rules confers standing upon a person.'' Under this definition, a child is a party because the child has standing to participate. See, e.g., Pa.R.J.C.P. 1151 (providing for appointment of guardian ad litem or counsel to represent a child). Specifically including the child in paragraph (A) reinforces the importance of the child's presence and eliminates the need for readers to rely upon a definition to understand the scope of the requirement.
The Comment is also revised to emphasize that exceptions to a child's presence at dependency proceedings are to be based on individual circumstances. Moreover, the Comment references the requirement of Pa.R.J.C.P. 1129(A)(2) that the child be physically present in court at least every six months. Finally, the Comment indicates that a child's unease while attending should be mitigated by the court.
The amendment will become effective January 1, 2021.
[Pa.B. Doc. No. 20-1445. Filed for public inspection October 23, 2020, 9:00 a.m.] _______
1 The Committee's Final Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
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