No. 528.Supreme Court of Pennsylvania.
April 29, 2011.
ORDER
PER CURIAM.
AND NOW, this 29th day of April, 2011, upon the recommendation of the Juvenile Court Procedural Rules Committee; the proposal having been published for public comment before adoption at 39 Pa.B. 6019 (Oct. 17, 2009) and 40 Pa.B. 2245 (May 1, 2010), in the Atlantic Reporter (Second Series Advance Sheets, Vol. 978, No. 3, October 9, 2009 and Vol. 992, No. 1, May 21, 2010), and on the Supreme Court’s web-page, and an Explanatory Report to be published with thisORDER:
IT IS ORDERED pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the modifications to Rules 120, 242, 406, 500, 512, 513, 515, 600, 610, 1120, 1154, 1240, 1242, 1406, 1501, 1512, 1514, 1515, 1601, 1609, and 1800 and adoption of new Rules 136, 147, 1136, and 1147 of the Rules of Juvenile Court Procedure are approved in the attached form.
This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective July 1, 2011.
Additions to the rule are shown in bold and are underlined.
Deletions from the rule are shown in bold and brackets.
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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
EXPLANATORY REPORT APRIL 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.
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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/Reasonable 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 prohibitin 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,
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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 Benchbook 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.
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RULES OF JUVENILE COURT PROCEDURE DELINQUENCY MATTERS Table of Rules CHAPTER 1 GENERAL PROVISIONS * * * PART A BUSINESS OF COURTS * * *136. Ex Parte Communication * * * PART B(1) EDUCATION AND HEALTH OF JUVENILE147. Educational decision maker PART B (2) COUNSEL * * *
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RULE 120. DEFINITIONS * * * EDUCATIONAL DECISION MAKER is a responsible adult appointed bythe court to make decisions regarding a juvenile’s education whenthe juvenile has no guardian or the court has limited the guardian’sright to make such decisions for the juvenile. The educationaldecision maker acts as the juvenile’s representative concerning allmatters regarding education unless the court specifically limits theauthority of the educational decision maker.
* * * HEALTH CARE is care related to any medical need includingphysical, mental, and dental health. This term is used in thebroadest sense to include any type of health need.
* * * SOCIAL STUDY is a pre-dispositional report, which summarizesimportant information concerning the juvenile to aid the court indetermining the disposition.
COMMENT * * * An “educational decision maker” is to be appointed by courtorder. The scope of the appointment is limited to decisionsregarding the juvenile’s education. The educational decision makeracts as the juvenile’s spokesperson on all matters regardingeducation unless the court specifically limits the authority of theeducational decision maker. The educational decision maker holdseducational and privacy rights as the juvenile’s guardian forpurposes of 20 U.S.C. § 1232g and 34 C.F.R. § 99.3. Seealso Rule 147(C) for the duties and responsibilities of aneducational decision maker.
* * * “Health care” includes, but is not limited to, routinephysical check-ups and examinations; emergency health care;surgeries; exploratory testing; psychological exams, counseling,therapy and treatment programs; drug and alcohol treatment; supportgroups; routine eye examinations and procedures; teeth cleanings,fluoride treatments, fillings, preventative dental treatments, rootcanals, and other dental surgeries; and any other examination ortreatment relating to any physical, mental, and dental needs of thejuvenile.
* * * A “pre-dispositional report” or “social study” includes, butis not limited to, the compilation of the juvenile’s family historyand demographics; school record and educational issues; job history;talents and extra-curricular activities; prior delinquency ordependency involvement with the court; health care issues;psychological or psychiatric history, examinations, and reports;drug and alcohol examinations, treatments, and reports; needsregarding disability; and any other relevant information concerningthe juvenile to help the court understand any issues relating to thejuvenile.
* * * Official Note:
* * *
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Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 120 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULE 136. EX PARTE COMMUNICATION A) Unless otherwise authorized by law, no person shallcommunicate with the court in any way regarding matters pendingbefore the court unless all parties:
1) are present or have been copied if the communication is written or in electronic form; or
2) have waived their presence or right to receive the communication.
B) If the court receives any ex partecommunication, the court shall inform all parties of thecommunication and its content.
COMMENT No ex parte communications with the court areto occur. Communications should include all parties, such as thefiling of a motion, or conducting a conference or a hearing.
Attorneys are bound by the Rules of Professional Conduct.See Rules of Professional ConductRule 3.5(b). Judges are bound by the Code of Judicial Conduct.See Code of Judicial Conduct Canon 3(A)(4).
Attorneys and judges understand the impropriety ofex parte communications regarding matters pending beforethe court but many participants, such as probation officers andservice providers, are not attorneys or judges. This rule ensuresthat all parties have received the same information that is beingpresented to the court so that it may be challenged orsupplemented.
Administrative matters are not considered exparte communications.
OfficialNote: Rule 136 adopted April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 136 publishedwith the Court’s Order at 41 Pa.B.-(-).
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PART B(1) EDUCATION AND HEALTH OF JUVENILE147. Educational decision maker.RULE 147. EDUCATIONAL DECISION MAKER. A. Generally. At any proceeding or upon motion, the courtshall appoint an educational decision maker for the juvenile if itdetermines that:
1) the juvenile has no guardian; or
2) the court, after notice to the guardian and an opportunity for the guardian to be heard, has made a determination that it is in the juvenile’s best interest to limit the guardian’s right to make decisions regarding the juvenile’s education.
B. Notice of hearings. The educational decision maker shallreceive notice of all proceedings.
C. Duties and responsibilities. The educational decision makershall:
1) make appropriate inquiries and take appropriate actions to ensure that:
a) issues concerning school discipline matters are addressed;
b) the juvenile is receiving appropriate education that will allow the juvenile to meet state standards, including any necessary services concerning special education in the least restrictive environment, or remedial services;
c) the juvenile, who is receiving services concerning special education, is engaged in transition planning with the school entity beginning no later than the school year in which the juvenile turns fourteen;
d) the juvenile approaching discharge from a delinquency placement will be promptly enrolled in an appropriate program of instruction that addresses the juvenile’s educational needs; and
e) any other educational matters, as appropriate in the juvenile’s best interest, are addressed.
2) address the juvenile’s educational needs by:
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a) meeting with the juvenile at least once and as often as necessary to make decisions regarding education that are in the juvenile’s best interests;
b) participating in special education and other meetings, and making decisions regarding all matters affecting the juvenile’s educational needs in a manner consistent with the juvenile’s best interests;
c) making any specific recommendations to the court relating to:
i) the timeliness and appropriateness of the juvenile’s educational placement; and
ii) services necessary to address the juvenile’s educational needs;
d) appearing and testifying at court hearings when necessary; and
e) having knowledge and skills that ensure adequate representation of the juvenile.
COMMENT A juvenile is to have a clearly identified, legally authorizededucational decision maker. This is a particular concern forjuveniles who are adjudicated delinquent, may be returning fromdelinquency placements, and may not have a parent available and ableto perform this function. An educational decision maker’sresponsibilities may include, but are not limited to: ensuringthat the juvenile is promptly enrolled in an appropriate educationalprogram while in placement and upon discharge; see42 Pa.C.S. § 6301(b)(2) and 55 Pa. Code § 3130.87; ensuringeducational stability as applicable pursuantto 42 U.S.C. §§ 675(1)(G) and 11431 et seq.;facilitating access to a full range of school programs; advocatingfor the juvenile in school discipline matters; ensuring meaningfultransition planning as required by42 Pa.C.S. § 6351 and 42 U.S.C. § 675(5)(H); and for a juvenileeligible for special education, ensuring access to appropriateservices including transition planning beginning no later than agefourteen. See24 P.S. §§ 13-1371, 13-1372 and 20 U.S.C. § 1400et seq. See paragraphs (A) and (C).
An educational decision maker appointed pursuant tothis rule who represents a juvenile who is also adjudicateddependent is to review Rule 1147 for additional informationconcerning educational laws and entitlements applicable to childrenin dependent care.
A court is not to appoint an educational decision maker ifthere is a parent, guardian, or other authorized person(e.g., foster parent, relative with whom thejuvenile lives or surrogate parent appointed under the IDEA) who iscompetent, willing, and available to make decisions regarding thejuvenile’s education and who is acting in the juvenile’s bestinterest regarding all educational matters. SeeIndividuals with Disabilities Education Act(“IDEA”), 20 U.S.C. § 1400 et seq. (2004). A courtshould limit the authority of a parent to make decisions regardingthe juvenile’s education only to the extent necessary to protect thejuvenile’s interest and can reinstate the parent or change theeducational decision maker at any time.
Unless limited by the court in its appointment order, aneducational decision maker: 1) is responsible for making alldecisions concerning education, including special education, for thejuvenile; and 2) can consent to or prohibit the release ofinformation from the juvenile’s school records as a parent inaccordance with the Family Educational Rights and PrivacyAct, 20 U.S.C. § 1232g
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and 34 C.F.R. § 99.3 (1974). The educational decision makermay be a family member, a family friend, a mentor, a foster parent,a former foster parent, a Court Appointed Special Advocate, or, ifan educational decision maker for special education is not needed, achild welfare professional. Except as otherwise provided by theIDEA, it is within the discretion of the court to appoint aneducational decision maker and whom to appoint. In all cases,however, an educational decision maker appointed by the court shouldbe familiar with a juvenile’s educational rights or is to agree tobe trained regarding these issues.
If the juvenile is or may be eligible for special education,an educational decision maker is to be appointed in accordance withthe standards and procedures set forth in federal and statelaws concerning special education. SeeIDEA, 20 U.S.C. §§ 1400, 1401(23), and1415(b)(2); 34 C.F.R. §§ 300.30, 300.45, and 300.519. The IDEArecognizes a court’s authority to appoint persons to make decisionsconcerning special education for a juvenile. However, such decisionmakers cannot be the State or employees of any agency that isinvolved in the education or care of thejuvenile. 34 C.F.R. § 300.519(c), (d)(2)(i).
The authority of the court to appoint an educational decisionmaker is derived from the broad powers of the court to issue ordersthat “provide for the care, protection, safety, and wholesome mentaland physical development of children.”42 Pa.C.S. § 6301 (b)(1.1). The IDEA also requires that eachjuvenile who is eligible for special education has an active parentor other identified person who can participate in the processconcerning special education. SeeIDEA, 20 U.S.C. §§ 1401(23) and1415(b)(2); 34 C.F.R. §§ 300.30, 300.45, and 300.519.
OfficialNote: Rule 147 adopted April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 147 publishedwith the Court’s Order at 41 Pa.B.-(-).
* * * PART B(2) COUNSEL * * *
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RULE 242. DETENTION HEARING * * *
C. Findings. The court shall determine whether:
1) there is probable cause that a delinquent act was committed by the juvenile; [and] 2) detention of the juvenile is warranted; and
3) there are any special needs of the juvenile that have been identified and that the court deems necessary to address while the juvenile is in detention.
E. Court’s order. At the conclusion of the detention hearing,the court shall enter a written order setting forth its findingspursuant to paragraph (C).
COMMENT
A detention hearing consists of two stages. The first stage of a detention hearing is a probable cause hearing. If probable cause is not found, the juvenile is to be released. If probable cause is found, then the court is to proceed to the second stage.
The second stage of a detention hearing is a detention determination hearing. The court should hear pertinent evidence concerning the detention status of the juvenile, review and consider all alternatives to secure detention, and determine if the detention of the juvenile is warranted.
An additional determination is required inparagraph (C)(3) although this is not a third stage of the detentionhearing. It is important that the court address any special needs ofthe juvenile while the juvenile is in detention. Thejuvenile’s attorney, the juvenile probation officer, or detentionstaff is to present any educational, health care, and disabilityneeds to the court, if known at the time of the hearing. Specialneeds may include needs for special education, remedial services,health care, and disability. If the court determines a juvenile isin need of an educational decision maker, the court is to appoint aneducational decision maker pursuant to Rule 147.
When addressing the juvenile’s needs concerning health careand disability, the court’s order should address the right of: 1) ajuvenile to receive timely and medically appropriate screenings andhealth care services,55 Pa. Code § 3800.32 and 42 U.S.C. § 1396d(r); and 2) a juvenile withdisabilities to receive necessaryaccommodations, 42 U.S.C. § 12132, 28 C.F.R. § 35.101et seq., Section 504 of the Rehabilitation Act of1973, as amended, 29 U.S.C. § 794, and implementingregulations at 45 C.F.R. § 84.1 et seq.
Pursuant to the Juvenile Act, the court has authority to ordera physical or mental examination of a juvenile and medical orsurgical treatment of a minor, who is suffering from a seriousphysical condition or illness which requires prompt treatment in theopinion of a physician. The court may order the treatment even ifthe guardians have not been given notice of the pending hearing, arenot available, or without good cause inform the court that they donot consent to the treatment. 42 Pa.C.S. § 6339(b).
The procedures of paragraph (D) deviate from the procedures of the Juvenile Act. See 42 Pa.C.S. § 6331. Under paragraph (D), a petition does not have to be filed within twenty-four hours of the juvenile’s detention; rather, the petition should be filed within twenty-four hours of the conclusion of the detention hearing if the juvenile is detained. See Rule 800. If the juvenile is not detained, a petition may be filed at any time prior to the adjudicatory hearing. However, the juvenile’s attorney should have
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sufficient notice of the allegations prior to the adjudicatory hearing to prepare for the defense of the juvenile. SeeRule 330 for petition requirements, Rule 331 for service of thepetition, and [See] Rule 363 for time of service. [See Rule 331 for service of thepetition. See Rule 330 for petition requirements.] See 42 Pa.C.S. §§ 6332, 6336, and 6338 for the statutory provisions concerning informal hearings and other basic rights.
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 242 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULE 406. ADJUDICATORY HEARING * * *
B. Recording. The adjudicatory hearing shall be recorded.[The recording shall be transcribed:
1) at the request of a party;
2) pursuant to a court order; or
3) when there is an appeal.]
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 406 publishedwith the Court’s Order at 41 Pa.B.-(-).
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Part A SUMMONS AND NOTICE OF THE DISPOSITIONAL HEARINGRule 500. Summons and Notice of the Dispositional Hearing * * *
B. Notice. The court shall give notice of the dispositional hearing to:
1) the attorney for the Commonwealth;
2) the juvenile’s attorney; [and] 3) the juvenile probation office; and
4) the educational decision maker, if applicable.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 500 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULE 512. DISPOSITIONAL HEARING * * *
B. Recording. The dispositional hearing shall be recorded.[The recording shall be transcribed:
1) at the request of a party;
2) pursuant to a court order; or
3) when there is an appeal.]
* * * D. Court’s findings. The court shall enter its findings andconclusions of law into the record and enter an order pursuant toRule 515. On the record in open court, the court shall state:
1) its disposition;
2) the reasons for its disposition;
3) the terms, conditions, and limitations of the disposition; and
4) if the juvenile is removed from the home:
a) the name or type of any agency or institution that shall provide care, treatment, supervision, or rehabilitation of the juvenile, and
b) its findings and conclusions of law that formed the basis of its decision consistent with 42 Pa.C.S. §§ 6301 and 6352, including why the court found that the out-of-home placement ordered is the least restrictive type of placement that is consistent with the protection of the public and best suited to the juvenile’s treatment, supervision, rehabilitation, and welfare;
5) whether any evaluations, tests, counseling, or treatments are necessary;
6) any findings necessary to ensure the stability and appropriateness of the juvenile’s education, and when appropriate, the court shall appoint an educational decision maker pursuant to Rule 147; and
7) any findings necessary to identify, monitor, and address the juvenile’s needs concerning health care and disability, if any, and if parentalPage 13
consent cannot be obtained, authorize evaluations and treatment needed.
COMMENT
Under paragraph (A)(2), for victim’s right to be heard, see Victim’s Bill of Rights, 18 P.S. § 11.201 et seq.
To the extent practicable, the judge or master that presided over the adjudicatory hearing for a juvenile should preside over the dispositional hearing for the same juvenile.
Pursuant to paragraph (C), the court is to advise the juvenileof his or her appellate rights orally in the courtroom on therecord. The court is to explain the right to appointed counsel foran appeal if a juvenile is without counsel, and without thefinancial resources or otherwise unable to employ counsel.See 42 Pa.C.S. § 6337; see also Rule150(B) for duration of counsel and Rule 151 for assignment ofcounsel.
Pursuant to paragraph (D), when the court has determined thejuvenile is in need of treatment, supervision, and rehabilitation,the court is to place its findings and conclusions of law on therecord by announcing them orally in the courtroom, followed bywritten order. The court is to consider the following factors: a)the protection of the community; b) the treatment needs of thejuvenile; c) the supervision needs of the juvenile; d) thedevelopment of competencies to enable the juvenile to become aresponsible and productive member of the community; e)accountability for the offense(s) committed; and f) any otherfactors that the court deems appropriate.
Nothing in this rule is intended to preclude the court fromfurther explaining its findings in the dispositional order pursuantto Rule 515.
Pursuant to paragraph (D)(4), when out-of-home placement isnecessary, the court is to explain why the placement is theleast restrictive type of placement that is consistent with theprotection of the public and the rehabilitation needs of thechild. See 42 Pa.C.S. § 6352.
Pursuant to paragraph (D)(6), the court should address thejuvenile’s educational needs. The court’s order should address theright to: 1) an educational decision maker pursuant toRule 147, 42 Pa.C.S. § 6301, 20 U.S.C. § 1439(a)(5),and 34 C.F.R. § 300.519; and 2) an appropriate education, includingany necessary special education or remedial services,24 P.S. §§ 13-1371, 13-1372, 55 Pa.Code § 3130.87, and 20 U.S.C. § 1400 et seq.
The court should also address the juvenile’s needs concerninghealth care and disability. The court’s order should address theright of: 1) a juvenile to receive timely and medically appropriatescreenings and health care services,55 Pa. Code § 3800.32 and 42 U.S.C. § 1396d(r); and 2) a juvenile withdisabilities to receive necessaryaccommodations, 42 U.S.C. § 12132, 28 C.F.R. § 35.101et seq., Section 504 of the Rehabilitation Act of1973, as amended, 29 U.S.C. § 794, and implementingregulations at 45 C.F.R. § 84.1 et seq.
Pursuant to the Juvenile Act, the court has authority to ordera physical or mental examination of a juvenile and medical orsurgical treatment of a minor, who is suffering from a seriousphysical condition or illness which requires prompt treatment in theopinion of a physician. The court may order the treatment even ifthe guardians have not been given notice of the pending hearing, arenot available, or without good cause inform the court that they donot consent to the treatment. 42 Pa.C.S. § 6339(b).
See Rule 127 for recording and transcribing ofproceedings.
See Rule 136 for ex partecommunications.
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 512 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULE 513. AIDS IN DISPOSITION
A. Social Study.
1) The court may order the preparation of a social study in any case to aid in the decision for disposition.
2) If a social study is ordered, the study shall address any educational, health care, and disability needs of the juvenile.
B. Examinations. The court may order the juvenile to undergohealth, psychological, psychiatric, drug and alcohol, or any other examination, as it deems appropriate to aid in the decision for disposition.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 513 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULE 515. DISPOSITIONAL ORDER
A. Generally. When the court enters a disposition after a adjudication of delinquency pursuant to Rule 409(A)(2), the court shall issue a written order, which provides balanced attention to the protection of the community, accountability for the offenses committed, and development of the juvenile’s competencies to enable the juvenile to become a responsible and productive member of the community. The order shall include:
1) [the terms and conditions of the disposition]the court’s findings pursuant to Rule 512(D);
[2) the name of any agency or institution that shall provide care, treatment, supervision, or rehabilitation of the juvenile;] [3] 2) a designation whether the case is eligible pursuant to 42 Pa.C.S. § 6307 (b)(1)(i) for limited public information;
[4] 3) a directive that the juvenile shall submit to fingerprinting and photographing by, or arranged by, the law enforcement agency that submitted the written allegation in all cases in which the juvenile has not previously been fingerprinted or photographed;
[5] 4) the date of the order; and
[6] 5) the signature and printed name of the judge entering the order.
* * *
C. Guardian participation. The [court]dispositional order shall include any conditions,limitations, restrictions, and obligations [in itsdispositional order] imposed upon the guardian.
* * * COMMENT
Pursuant to paragraph (A)([3] 2), the court is to determine if the case is eligible for limited public information under the requirements of 42 Pa.C.S. § 6307 (b)(1)(i). See 42 Pa.C.S. § 6307 (b)(2). When the case is designated, the clerk of courts is to mark the file clearly. For information that is available to the public in those eligible cases, see Rule 160.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
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Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 515 publishedwith the Court’s Order at 41 Pa.B.-(-).
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PART A SUMMONS AND NOTICE Rule 600. Summons and Notice of the Commitment Review,Dispositional Review, and Probation Revocation Hearing
* * *
B. Notice. The court shall give notice of the hearing to:
1) the attorney for the Commonwealth;
2) the juvenile’s attorney;
3) the juvenile probation office; [and] 4) the placement facility staff, if the juvenile is in placement; and
5) the educational decision maker, if applicable.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 600 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULE 610. DISPOSITIONAL AND COMMITMENT REVIEW * * * COMMENT * * * At any hearing, if it is determined that the juvenile is inneed of an educational decision maker, the court is to appoint aneducational decision maker pursuant to Rule 147.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 610 publishedwith the Court’s Order at 41 Pa.B.-(-).
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RULES OF JUVENILE COURT PROCEDURE DEPENDENCY MATTERS CHAPTER 11 GENERAL PROVISIONS * * * PART A
BUSINESS OF COURTS * * *1136. Ex Parte Communication PART B(1) [EXAMINATION AND TREATMENT] EDUCATION ANDHEALTH OF CHILD1145. Application or Motion for Examination and Treatment of a Child1147. Educational decision maker. * * *
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RULE 1120. DEFINITIONS * * * EDUCATIONAL DECISION MAKER is a responsible adult appointed bythe court to make decisions regarding a child’s education when thechild has no guardian or the court has limited the guardian’s rightto make such decisions for the child. The educational decision makeracts as the child’s representative concerning all matters regardingeducation unless the court specifically limits the authority of theeducational decision maker.
* * * HEALTH CARE is care related to any medical need includingphysical, mental, and dental health. This term is used in thebroadest sense to include any type of health need.
* * * COMMENT * * * An “educational decision maker” is to be appointed by courtorder. The scope of the appointment is limited to decisionsregarding the child’s education. The educational decision maker actsas the child’s spokesperson on all matters regarding educationunless the court specifically limits the authority of theeducational decision maker. The educational decision maker holdseducational and privacy rights as the child’s guardian for purposesof 20 U.S.C. § 1232g and 34 C.F.R. § 99.3. See alsoRule 1147(C) for the duties and responsibilities of aneducational decision maker.
* * * “Health care” includes, but is not limited to, routinephysical check-ups and examinations; emergency health care;surgeries; exploratory testing; psychological exams, counseling,therapy and treatment programs; drug and alcohol treatment; supportgroups; routine eye examinations and procedures; teeth cleanings,fluoride treatments, fillings, preventative dental treatments, rootcanals, and other dental surgeries; and any other examination ortreatment relating to any physical, mental, and dental needs of thechild.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1120 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 21
RULE 1136. EX PARTE COMMUNICATION A) Unless otherwise authorized by law, no person shallcommunicate with the court in any way regarding matters pendingbefore the court unless all parties:
1) are present or have been copied if the communication is written or in electronic form; or
2) have waived their presence or right to receive the communication.
B) If the court receives any ex partecommunication, the court shall inform all parties of thecommunication and its content.
COMMENT No ex parte communications with the court areto occur. Communications should include all parties, such as thefiling of a motion, or conducting a conference or a hearing.
Attorneys are bound by the Rules of Professional Conduct.See Rules of Professional ConductRule 3.5(b). Judges are bound by the Code of Judicial Conduct.See Code of Judicial Conduct Canon 3(A)(4).
Attorneys and judges understand the impropriety ofex parte communications regarding matters pending beforethe court but many participants are not attorneys or judges.This rule ensures that all parties have received the sameinformation that is being presented to the court so that it may bechallenged or supplemented.
Administrative matters are not considered exparte communications.
OfficialNote: Rule 1136 adopted April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1136 publishedwith the Court’s Order at 41 Pa.B.-(-).
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PART B(1) [EXAMINATION AND TREATMENT] EDUCATION ANDHEALTH OF CHILD
1145. Application or Motion for Examination and Treatment of a Child
1147. Educational decision maker.
RULE 1147. EDUCATIONAL DECISION MAKER. A. Generally. At any proceeding or upon motion, the courtshall appoint an educational decision maker for the child if itdetermines that:
1) the child has no guardian; or
2) the court, after notice to the guardian and an opportunity for the guardian to be heard, has made a determination that it is in the child’s best interest to limit the guardian’s right to make decisions regarding the child’s education.
B. Notice of hearings. The educational decision maker shallreceive notice of all proceedings.
C. Duties and responsibilities. The educational decision makershall: 1) make appropriate inquiries and take appropriate actions toensure that:
a) issues concerning the child’s educational stability are addressed;
b) school discipline matters are addressed;
c) the child is receiving appropriate education that will allow the child to meet state standards, including any necessary services concerning special education in the least restrictive environment, or remedial services;
d) the child, who is sixteen years of age or older, is receiving the necessary educational services to transition to independent living;
e) the child, who is receiving services concerning special education, is engaged in transition planning with the school entity beginning no later than the school year in which the child turns fourteen; and
f) the child, who is aging out of care within ninety days, has a transition plan that addresses the child’s educational needs, andPage 23
if applicable, the plan is coordinated with the child’s transition planning concerning special education under the Individuals with Disabilities Education Act.
2) address the child’s educational needs by:
a) meeting with the child at least once and as often as necessary to make decisions regarding education that are in the best interests of the child;
b) participating in special education and other meetings, and making decisions regarding all matters affecting the child’s educational needs in a manner consistent with the child’s best interests;
c) making any specific recommendations to the court relating to:
i) the timeliness and appropriateness of the child’s educational placement;
ii) the timeliness and appropriateness of the child’s transitional planning; and
iii) services necessary to address the child’s educational needs;
d) appearing and testifying at court hearings when necessary; and
e) having knowledge and skills that ensure adequate representation of the child.
COMMENT A child in dependent care is to have a clearly identified,legally authorized educational decision maker. This is a particularconcern for highly mobile children whose caregivers may change andwhose guardian may be unavailable. An educational decision maker’sresponsibilities may include, but are not limited to: ensuringeducational stability as mandated by 42 U.S.C. §§ 675(1)(G) and11431 et seq.; ensuring prompt enrollment in anew school as required pursuant to 22 Pa. Code § 11.11(b);facilitating access to a full range of school programs; advocatingfor the child in school discipline matters; ensuring meaningfultransition planning as required by42 Pa.C.S. § 6351 and 42 U.S.C. § 675(5)(H); and for a childeligible for special education, ensuring access to appropriateservices including transition planning beginning no later than agefourteen. See24 P.S. §§ 13-1371, 13-1372, 20 U.S.C. § 1400 etseq. See paragraph (A) and (C).
An educational decision maker appointed pursuant tothis rule who represents a child who is also adjudicated delinquentis to review Rule 147.
A court is not to appoint an educational decision maker ifthere is a parent, guardian, or other authorized person(e.g., foster parent, relative with whom the childlives or surrogate parent appointed under the IDEA) who iscompetent, willing, and available to make decisions regarding thechild’s education and who is acting in the child’s best interestregarding all educational matters. See Individualswith Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400et seq. (2004). A court should limit the authority of aparent to make decisions regarding education only to the
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extent necessary to protect the child’s interest and canreinstate the parent or change the educational decision maker at anytime.
Unless limited by the court in its appointment order, aneducational decision maker: 1) is responsible for making alldecisions concerning education, including special education, for thechild; and 2) can consent to or prohibit the release of informationfrom the child’s school records as a parent in accordance with theFamily Educational Rights and Privacy Act, 20 U.S.C. § 1232gand 34 C.F.R. § 99.3 (1974). The educational decision maker may be afamily member, a family friend, a mentor, a foster parent, a formerfoster parent, a Court Appointed Special Advocate, or, if aneducational decision maker for special education is not needed, achild welfare professional. Except as otherwise provided by theIDEA, it is within the discretion of the court to appoint aneducational decision maker and whom to appoint. In all cases,however, an educational decision maker appointed by the court shouldbe familiar with a child’s educational rights or is to agree to betrained regarding these issues.
If the child is or may be eligible for special education, aneducational decision maker is to be appointed in accordance with thestandards and procedures set forth in federal and statelaws concerning special education. SeeIDEA, 20 U.S.C. §§ 1400, 1401(23), and1415(b)(2); 34 C.F.R. §§ 300.30, 300.45, and 300.519. The IDEArecognizes a court’s authority to appoint persons to make decisionsconcerning special education for a child. However, such decisionmakers cannot be the State or employees of any agency that isinvolved in the education or care of thechild. 34 C.F.R. § 300.519(c), (d)(2)(i).
The educational decision maker should refer to the FosteringConnections to Success and Increasing Adoptions Act of2008 (P.L. 110-351) and the McKinney-Vento Homeless AssistanceAct, 42 U.S.C. § 11431 et seq. (1989) for guidance ineducational stability. Specifically, the educational decision makeris to: a) ensure the right to remain in the same school regardlessof a change in placement when it is in the child’s best interest; b)facilitate immediate enrollment in a new school when a school changeis in the child’s best interest; and c) ensure that school proximityis considered in all placement changes, 42 U.S.C. §§ 675(1)(G) and11431 et seq.
The educational decision maker is to also ensure: a) that thechild receives an appropriate education, including, as applicable,any necessary special education, early intervention, or remedialservices; see 24 P.S. §§ 13-1371, 13-1372, 55 Pa.Code § 3130.87, 20 U.S.C. § 1400 et seq.; b)that the child receives educational services necessary to supportthe child’s transition to independent living pursuant to42 Pa.C.S. § 6351 if the child is sixteen or older; and c) that theeducational decision maker participates in the development of atransition plan that addresses the child’s educational needspursuant to 42 U.S.C. § 675(5)(H) if the child will age out of carewithin ninety days.
The authority of the court to appoint an educational decisionmaker is derived from the broad powers of the court to issue ordersthat “provide for the care, protection, safety, and wholesome mentaland physical development of children.”42 Pa.C.S. § 6301(b)(1.1). The IDEA also requires that eachchild who is eligible for special education has an active parent orother identified person who can participate in the processconcerning special education. SeeIDEA, 20 U.S.C. §§ 1401(23) and1415(b)(2); 34 C.F.R. §§ 300.30, 300.45, and 300.519.
OfficialNote: Rule 1147 adopted April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1147 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 25
RULE 1154. DUTIES OF GUARDIAN AD LITEM * * *
7) Make any specific recommendations to the court relating to the appropriateness and safety of the child’s placement and services necessary to address the child’s needs and safety, including the child’s educational, health care, and disability needs;
* * * COMMENT
If there is a conflict of interest between the duties of the guardian ad litem pursuant to paragraphs (7) []and (9), the guardianad litem for the child may move the court forappointment as legal counsel and assignment of a separateguardian ad litem when, for example, the informationthat the guardian ad litem possesses gives rise tothe conflict and can be used to the detriment of the child.[the guardian ad litem may move the court forappointment of a separate guardian ad litem or legalcounsel.] If there is not a conflict of interest, theguardian ad litem represents the legal interests andbest interests of the child at every stage of theproceedings. 42 Pa.C.S. § 6311(b). To the extent42 Pa.C.S. § 6311(b)(9) is inconsistent with this rule, it issuspended. See Rules 1151 and 1800. See also
Pa.R.P.C. 1.7 and 1.8.
“Legal interests” denotes that an attorney is to express thechild’s wishes to the court regardless of whether the attorneyagrees with the child’s recommendation. “Best interests” denotesthat a guardian ad litem is to express what theguardian ad litem believes is best for the child’scare, protection, safety, and wholesome physical and mentaldevelopment regardless of whether the child agrees.
Pursuant to paragraph (7), the guardian ad litemis to make specific recommendations to the court regarding theappropriateness of the child’s placement, giving consideration tothe proximity and appropriateness of the child’s school.See42 Pa.C.S. § 6311(b)(7) and 42 U.S.C. § 675(1)(G).Inquiries into the child’s education should include the right to: 1)educational stability, including the right to remain in the sameschool regardless of a change in placement when in the child’s bestinterest and the right to immediate enrollment when a school changeis in the child’s best interest, 42 U.S.C. §§ 675(1)(G) and11431 et seq.; 2) an educational decision makerpursuant toRule 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 anynecessary special education, early intervention, or remedialservices, 24 P.S. §§ 13-1371 and 13-1372, 55 Pa.Code § 3130.87, and 20 U.S.C. § 1400 etseq.; 4) the educational services necessary to support thechild’s transition to independent living, 42 Pa.C.S. § 6351 if achild is sixteen or older; and 5) a transition plan that addressesthe child’s educational needs, 42 U.S.C. § 675(5)(H), if the childwill age out of care in the next ninety days.
See In re S.J.,906 A.2d 547, 551 (Pa. Super. Ct. 2006) (citing In reTameka M., 525 Pa. 348, 580 A.2d 750 (1990)), for issuesaddressing a child’s mental and moral welfare.
Pursuant to paragraph (7), the guardian ad litemis to make specific recommendations to the court regarding theappropriateness of the child’s placement, giving consideration tomeeting the child’s needs concerning health care and disability.Inquiries into the child’s health should include the right of: 1)the child to receive timely and medically appropriate screenings andhealth care services,55 Pa. Code §§ 3700.51 and 3800.32, 42 U.S.C. § 1396d(r); and 2) achild with disabilities to receive necessaryaccommodations, 42 U.S.C. § 12132, 28 C.F.R. § 35.101et seq., Section 504 of the Rehabilitation Act of1973, as amended, 29 U.S.C. § 794 and implementingregulations at 45 C.F.R. § 84.1 et seq.
The guardian ad litem may be appointed as theeducational decision maker. If the guardian ad litemis not the educational decision maker, the guardian adlitem is to coordinate efforts and consult with theeducational decision maker. See Rule 1147 for dutiesof the educational decision maker.
Page 26
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Final Report explaining the amendments to Rule 1154 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 27
PART C SHELTER CARE
1240. Shelter Care Application
1241. Notification of Shelter Care Hearing
1242. Shelter Care Hearing
1243. Shelter Care Rehearing
RULE 1240. SHELTER CARE APPLICATION
A. Filings. A shelter care application may be oral or inwriting. If oral, w[W]ithin twenty-four hours of exercising protective custody pursuant to Rule 1210, the county agency shall [reduce to writing and] file a written
shelter care application [with the Juvenile Court].
B. Application contents. Every shelter care application shall set forth [plainly]:
* * *
6) [if a child is in shelter care,] a statement detailing:
a) the [that] reasonable efforts made to prevent placement; [were made] and
b) why there are no less restrictive alternatives available;
* * * COMMENT
* * * Pursuant to paragraph (B)(6), the application is to contain astatement detailing the reasonable efforts made to prevent placementand the specific reasons why there are no less restrictivealternatives available. This statement may include information suchas: 1) the circumstances of the case; 2) contact with family membersor other kin; 3) the child’s educational, health care, anddisability needs; and 4) any need for emergency actions.
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1240 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 28
RULE 1242. SHELTER CARE HEARING. * * *
C. Findings. The court shall determine whether:
1) there are sufficient facts in support of the shelter care application;
2) custody of the child is warranted after consideration of the following factors[;]:
[3)] a) remaining in the home would be contrary to the welfare and best interests of the child;
b) reasonable efforts were made by the county agency to prevent the child’s placement; [or] 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) the lack of efforts was reasonable in the case of an emergency placement where services were not offered [, whether the lack of efforts were reasonable]; [and] [4] 3) a person, other than the county agency, submitting [if] a shelter care application, [is submitted by a person other than the county agency, the court shall make a determination if the person] is a party to the proceedings; and
4) 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.
* * *
E. Court order. At the conclusion of the shelter care hearing, the court shall enter a written order [as to thefollowing]setting forth:
1) its findings pursuant to paragraph (C);
2) any conditions placed upon any party;
3) any orders for placement or temporary care of the child; [and]
Page 29
4) any findings or orders 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;
5) any findings or orders 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
6) any orders of visitation.
COMMENT * * * Pursuant to paragraph (C), the court is to make adetermination that the evidence presented with the shelter careapplication under Rule 1240 is supported by sufficient facts. Afterthis determination, the court is to determine whether the custody ofthe child is warranted by requiring a finding that: 1) remaining inthe home would be contrary to the health and welfare of the child;2) reasonable efforts were made by the county agency to prevent theplacement of the child; 3) the child was placed in theleast restrictive placement available; and 4) if the child was takeninto emergency placement without services being offered, the lack ofefforts by the county agency was reasonable. Additionally, the courtis to state the reasons why there are no less restrictivealternatives available.
Pursuant to [Under] paragraph (C)([4]3), 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.
Under paragraph (D), the court is to ensure a timely hearing.
[Under paragraph (E), the court is to include in its orderspecific findings that: 1) there are sufficient facts in support ofthe dependency petition; 2) custody of the child is warranted; and3) remaining in the home would be contrary to the welfare and bestinterests of the child, or reasonable efforts were made by thecounty agency to prevent the child’s placement, or in the case of anemergency placement where services were not offered, whether thelack of efforts were reasonable.] See 42 Pa.C.S. § 6332.Pursuant to paragraph (E), the court is to enter a writtenorder. It is important that the court address any special needs ofthe child while the child is in shelter care. The child’s attorneyor the county agency is to present any educational, health care, anddisability needs to the court, if known at the time of the hearing.These needs may include a child’s educational stability, needsconcerning early intervention, remedial services, health care, anddisability. If the court determines a child is in need of aneducational decision maker, the court is to appoint an educationaldecision maker pursuant to Rule 1147.
The court’s order should address the child’s educationalstability, including the right to an educational decision maker. Theorder should address the child’s right to: 1) educational stability,including the right to: a) remain in the same school regardless of achange in placement when it is in the child’s best interest; b)immediate enrollment when a school change is in the child’s bestinterest; and c) have school proximity considered in all placementchanges, 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 anynecessary special education, early intervention, or remedialservices pursuant to 24 P.S. §§ 13-1371 and 13-1372, 55 Pa.Code § 3130.87, and 20 U.S.C. § 1400 etseq.; 4) the educational services necessary to support thechild’s transition to independent living pursuant to42 Pa.C.S. § 6351 if the child is sixteen or older; and 5) atransition plan that addresses the child’s educational needspursuant to 42 U.S.C. § 675(5)(H) if the child will age out of carewithin ninety days.
Page 30
When addressing the child’s health and disability needs, thecourt’s order should address the right of: 1) a child to receivetimely and medically appropriate screenings and health careservices, 55 Pa. Code § 3800.32 and 42 U.S.C. § 1396d(r); and2) a child with disabilities to receive necessaryaccommodations, 42 U.S.C. § 12132, 28 C.F.R. § 35.101et seq., Section 504 of the Rehabilitation Act of1973, as amended, 29 U.S.C. § 794, and implementingregulations at 45 C.F.R. § 84.1 et seq.
Pursuant to the Juvenile Act, the court has authority to ordera physical or mental examination of a child and medical or surgicaltreatment of a minor, who is suffering from a serious physicalcondition or illness which requires prompt treatment in the opinionof a physician. The court may order the treatment even if theguardians have not been given notice of the pending hearing, are notavailable, or without good cause inform the court that they do notconsent to the treatment. 42 Pa.C.S. § 6339(b).
Nothing in this rule prohibits informal conferences, narrowing of issues, if necessary, and the court making appropriate orders to expedite the case through court. The shelter care hearing may be used as a vehicle to discuss the matters needed and narrow the issues. The court is to insure a timely adjudicatory hearing is held.
See 42 Pa.C.S. § 6339 for orders of physical and mental examinations and treatment.
See Rule 1330(A) for filing of a petition.
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1242 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 31
RULE 1406. ADJUDICATORY HEARING * * *
B. Recording. The adjudicatory hearing shall be recorded.[The recording shall be transcribed:
1) pursuant to a court order; or
2) when there is an appeal.]
C. Evidence. Each party shall be given the opportunity to:
1) introduce evidence;
2) present testimony; and
3) to cross-examine any witness.
[D.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.]
COMMENT * * *
Under paragraph (B), notes of testimony should be provided to counsel for a party upon good cause shown. The court may place conditions of release on the notes of testimony. [Underparagraph (B)(2), w]When an appeal is taken, the record is to be transcribed pursuant to Pa.R.A.P. 1922. See
Pa.R.A.P. 1911 for request of transcript.
* * * [Under paragraph (D), no ex parte communicationsregarding the facts and merits of the case with the court are tooccur. Attorneys and judges understand the impropriety ofex parte communications but many participants arenot attorneys or judges. This rule ensures that all parties havereceived the same information that is being presented to the courtso that it may be challenged or supplemented. Normal methods ofpractice and procedure such as motions, scheduling, communicationswith court personnel, are not considered ex partecommunications. See Pa.R.P.C. Rules 3.5. 3.3(d),and 8.3(a) and the Code of Judicial Conduct,Canons 1, 2, and 3.]
See Rule 1136 for ex partecommunications.
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Page 32
* * * Final Report explaining the amendments to Rule 1406 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 33
RULE 1501. DISPOSITIONAL NOTICE
The court or its designee shall give notice of the dispositional hearing to:
* * *
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:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1501 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 34
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 therecord 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 andconclusions of law into the record and enter an order pursuant toRule 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;
Page 35
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 * * * [For transcription of the record under paragraph (B), see alsoRule 1127.
Under paragraph (C), no ex parte communicationswith the court are to occur. Attorneys and judges understand theimpropriety of ex parte communications but manyparticipants are not attorneys or judges. This rule ensures that allparties have received the same information that is being presentedto the court so that it may be challenged or supplemented. Normalmethods of practice and procedure such as motions, scheduling,communications with court personnel, are not considered exparte communications.]
Pursuant to paragraph (C), the court is to advise the partiesof their appellate rights orally in the courtroom on the record. Thecourt is to explain the right to appointed counsel for an appeal ifa party is without counsel, and without the financial resources orotherwise unable to employ counsel. See42 Pa.C.S. § 6337; see also Rule 1150(B) forduration of counsel and Rule 1151 for assignment of counsel.
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All the findings made in open court are to be placed inwriting through the court’s dispositional order pursuant toRule 1515. Nothing in this rule is intended to preclude the courtfrom further explaining its findings in its dispositional order. Inaddition to the findings pursuant to paragraph (D),see Rule 1514 for dispositional findings beforeremoval from the home.
Pursuant to paragraph (D)(1)(f), the court is to determine thepermanency plan for the child. A permanency plan should include twoplans or goals: the primary plan and the secondary or concurrentplan.
The primary plan is the comprehensive plan developed toachieve the permanency goal. The secondary or concurrent plan isdeveloped and initiated so that if the primary plan is notfulfilled, timely permanency for the child may still be achieved.These two plans are to be simultaneously addressed by the countyagency.
Rule 1608 mandates permanency hearings at least every sixmonths. It is best practice to have three-month hearings to ensurepermanency is achieved in a timely fashion and the court is informedof the progress of the case. See Comment toRule 1608.
Pursuant to paragraph (D)(1)(h), the court is to address thechild’s educational stability, including the right to an educationaldecision 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 thechild’s right to: 1) educational stability, including the right to:a) remain in the same school regardless of a change in placementwhen it is in the child’s best interest; b) immediate enrollmentwhen a school change is in the child’s best interest; and c) haveschool proximity considered in all placementchanges, 42 U.S.C. §§ 675(1)(G) and 11431 et seq.; 2)an educational decision maker pursuant toRule 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 anynecessary special education, early intervention, or remedialservices pursuant to 24 P.S. §§ 13-1371 and 13-1372, 55 Pa.Code § 3130.87, and 20 U.S.C. § 1400 etseq.; 4) the educational services necessary to support thechild’s transition to independent living pursuant to42 Pa.C.S. § 6351 if the child is sixteen or older; and 5) atransition plan that addresses the child’s educational needspursuant to 42 U.S.C. § 675(5)(H) if the child will age out of carewithin ninety days.
Pursuant to paragraph (D)(1)(i), the court is to address thechild’s needs concerning health care and disability. The court’sfindings should address the right of: 1) a child to receive timelyand medically appropriate screenings and health care servicespursuant to55 Pa. Code §§ 3700.51 and 3800.32, and 42 U.S.C. § 1396d(r); 2) achild to a transition plan that addresses the child’s health careneeds, and includes specific options for how the child can obtainhealth insurance after leaving care pursuantto 42 U.S.C. § 675(5)(H) if the child will age out of care within90 days; and 3) a child with disabilities to receive necessaryaccommodations pursuantto 42 U.S.C. § 12132; 28 C.F.R. § 35.101 etseq., Section 504 of the Rehabilitation Act of 1973,as amended, 29 U.S.C. § 794, and implementingregulations at 45 C.F.R. § 84.1 et seq. In addition,the court is to ensure progress and compliance with the child’scase plan for the ongoing oversight and coordination of health careservices under 42 U.S.C. § 622(b)(15).
Pursuant to the Juvenile Act, the court has authority to ordera physical or mental examination of a child and medical or surgicaltreatment of a minor, who is suffering from a serious physicalcondition or illness which requires prompt treatment in the opinionof a physician. The court may order the treatment even if theguardians have not been given notice of the pending hearing, are notavailable, or without good cause inform the court that they do notconsent to the treatment. 42 Pa.C.S. § 6339(b).
Pursuant to paragraph (D)(1)(j), the court is to includesiblings in its visitation schedule. See42 U.S.C. § 671(a)(31), which requires reasonable efforts bemade to place siblings together unless it is contrary to the safetyor well-being of either sibling and that frequent visitation beassured if joint placement cannot be made.
See Rule 1127 for recording and transcribing ofproceedings.
See Rule 1136 for ex partecommunications.
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
Page 37
* * * Final Report explaining the amendments to Rule 1512 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 38
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 shallstate[enter into] on the record in opencourt 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:
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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] 3)(a) through (c) is not necessary.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1514 publishedwith the Court’s Order at 41 Pa.B.-(-).
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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) any findings pursuant to Rules 1512(D) and 1514; [the terms, conditions, and limitations of the disposition;
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)] 2) 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 g]Guardian. The[court] dispositional order shall include any conditions, limitations, restrictions, and obligations [in itsdispositional order] imposed upon the guardian.
COMMENT See 42 Pa.C.S. §§ 6310, 6351.
When issuing a dispositional order, the court should issue anorder that is “best suited to the safety, protection, and physical,mental, and moral welfare of the child.”42 Pa.C.S. § 6351(a).
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See In re S.J.,906 A.2d 547, 551 (Pa. Super. Ct. 2006) (citing In reTameka M., 525 Pa. 348, 580 A.2d 750 (1990)), for issuesaddressing a child’s mental and moral welfare.
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.
* * * Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1515 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 41
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:
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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:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1601 publishedwith the Court’s Order at 41 Pa.B.-(-).
Page 42
RULE 1609. [COURT ORDER OF] PERMANENCY HEARINGORDERS [DETERMINATIONS] 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 with42 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 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. [Ordersconcerning]Guardians. The[court] permanency order shall include any conditions, limitations, restrictions, and obligations [in its permanencyorder] 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 thesafety, protection, and physical, mental, and moral welfare of thechild, the court shall specify: a) the conditions of the return ofthe child; and b) the projected date of the return of the child; or2) If the court finds that the return of the child is not bestsuited to the safety, protection, and physical, mental, and moralwelfare of the child, the court shall determine if and when thechild will be placed: a) for adoption and the county agency willfile for termination of
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parental rights pursuant to Pa.O.C.R., Rule 15.4; b) with alegal custodian; c) with a fit and willing relative; or d) inanother living arrangement intended to be permanent in nature whichis approved by the court and where the county agency has documenteda compelling reason explaining why options under (a) through (c) arenot feasible.]
When issuing a permanency order, the court should issue anorder 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 reTameka M., 525 Pa. 348, 580 A.2d 750 (1990)), for issuesaddressing a child’s mental and moral welfare.
Pursuant to paragraph (D), the court’s order is to address thechild’s educational stability, including the right to an educationaldecision maker. The order should address the child’s right to: 1)educational stability, including the right to: a) remain in the sameschool regardless of a change in placement when it is in the child’sbest interest; b) immediate enrollment when a school change is inthe child’s best interest; and c) have school proximity consideredin all placement changes, 42 U.S.C. §§ 675(1)(G) and 11431et seq.; 2) an educational decision maker pursuant toRule 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 anynecessary special education, early intervention, or remedialservices pursuant to 24 P.S. §§ 13-1371 and 13-1372, 55 Pa.Code § 3130.87, and 20 U.S.C. § 1400 etseq.; 4) the educational services necessary to support thechild’s transition to independent living pursuant to42 Pa.C.S. § 6351 if the child is sixteen or older; and 5) atransition plan that addresses the child’s educational needspursuant to 42 U.S.C. § 675(5)(H) if the child will age out of carewithin ninety days.
Pursuant to paragraph (E), the court’s order is to address thechild’s needs concerning health care and disability. The ordershould address the right of: 1) a child to receive timely andmedically appropriate screenings and health care services pursuantto55 Pa. Code §§ 3700.51 and 3800.32 and 42 U.S.C. § 1396d(r); 2) a childto a transition plan that addresses the child’s health care needs,and includes specific options for how the child can obtain healthinsurance after leaving care pursuant to 42 U.S.C. § 675(5)(H) ifthe child will age out of care within ninety days; and 3) a childwith disabilities to receive necessary accommodations pursuantto 42 U.S.C. § 12132; 28 C.F.R. § 35.101 etseq., Section 504 of the Rehabilitation Act of 1973,as amended, 29 U.S.C. § 794, and implementingregulations at 45 C.F.R. § 84.1 et seq. In addition,the court is to ensure progress and compliance with the child’scase plan for the ongoing oversight and coordination of health careservices under 42 U.S.C. § 622(b)(15).
Pursuant to the Juvenile Act, the court has authority to ordera physical or mental examination of a child and medical or surgicaltreatment of a minor, who is suffering from a serious physicalcondition or illness which requires prompt treatment in the opinionof a physician. The court may order the treatment even if theguardians have not been given notice of the pending hearing, are notavailable, or without good cause inform the court that they do notconsent to the treatment. 42 Pa.C.S. § 6339(b).
Official Note:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1609 publishedwith the Court’s Order at 41 Pa.B.-(-).
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1800. SUSPENSIONS OF ACTS OF ASSEMBLY
3) The Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6311(b)(9), which provide 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 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:
* * * Amended April 29, 2011, effective July 1, 2011.
Committee Explanatory Reports:
* * * Final Report explaining the amendments to Rule 1800 publishedwith the Court’s Order at 41 Pa.B.-(-).
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