Title 237--JUVENILE RULES
PART I. RULES
[237 PA. CODE CHS. 11--18]
Order Approving the Rules of Juvenile Court Procedure--Dependency Matters; No. 395 Supreme Court Rules; Doc. No. 1
[36 Pa.B. 5571]
[Saturday, September 2, 2006]
Now, this 21st day of August, 2006, upon the recommendation of the Juvenile Court Procedural Rules Committee, the proposal having been published before adoption at 35 Pa.B. 4561 (August 13, 2005) and an Explanatory Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Rules of Juvenile Court Procedure--Dependency Matters are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 2007.
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart B. DEPENDENCY MATTERS
11. GENERAL PROVISIONS 12. COMMENCEMENT OF PROCEEDINGS, EMERGENCY CUSTODY, AND PRE-ADJUDICATORY PLACEMENT 13. PRE-ADJUDICATORY PROCEDURES 14. ADJUDICATORY HEARING 15. DISPOSITIONAL HEARING 16. POST-DISPOSITIONAL PROCEDURES 17. AGGRAVATED CIRCUMSTANCES 18. SUSPENSIONS
CHAPTER 11. GENERAL PROVISIONS
1100. Scope of Rules. 1101. Purpose and Construction. 1102. Citing the Juvenile Court Procedural Rules.
PART A. BUSINESS OF COURTS
1120. Definitions. 1121. Local Rules. 1122. Continuances. 1123. Subpoenas. 1124. Summons. 1126. Defects in Form, Content, or Procedure. 1127. Recording and Transcribing Juvenile Court Proceedings. 1128. Presence at Proceedings. 1129. Open Proceedings (Reserved). 1130. Public Discussion by Court Personnel of Pending Matters. 1133. Motion to Intervene. 1134. Proceedings in Camera. 1135. Captions.
PART B(1). EXAMINATION AND TREATMENT OF CHILD
1145. Application or Motion for Examination and Treatment of a Child.
PART B(2). COUNSEL
1150. Attorneys--Appearances and Withdrawals. 1151. Assignment of Guardian ad litem and Counsel. 1152. Waiver of Counsel. 1154. Duties of Guardian ad litem. 1158. Assignment of Court Appointed Special Advocates.
PART C. RECORDS
PART C(1). ACCESS TO JUVENILE COURT RECORDS
1160. Inspection of Juvenile Court File/Records.
PART C(2). MAINTAINING RECORDS
1165. Design of Forms. 1166. Maintaining Records in the Clerk of Courts. 1167. Filings and Service of Court Orders and Notices.
PART D. PROCEEDINGS IN CASES BEFORE MASTER
1185. Appointment to Cases. 1187. Authority of Master. 1190. Stipulations Before Master. 1191. Master's Findings and Recommendation to the Judge.
Rule 1100. Scope of Rules.
A. These rules shall govern dependency proceedings in all courts. Unless otherwise specifically provided, these rules shall not apply to orphans' court, domestic relations and delinquency proceedings.
B. Each of the courts exercising dependency jurisdiction, as provided in the Juvenile Act, 42 Pa.C.S. § 6301 et seq., may adopt local rules of procedure in accordance with Rule 1121.
The Pennsylvania Rules of Juvenile Court Procedure are split into two categories: delinquency matters and dependency matters. All delinquency matters are governed by Chapters One through Ten (Rules 100--1099). All dependency matters are governed by Chapters Eleven through Twenty (Rules 1100--2099).
These rules govern proceedings when the Juvenile Act vests jurisdiction in the Court of Common Pleas. See 42 Pa.C.S. §§ 6321 and 6302.
Each judicial district may promulgate local rules that follow the requirements of Rule 1121 and Pa.R.J.A. 103.
Rule 1101. Purpose and Construction.
A. These rules are intended to provide for the just determination of every dependency proceeding.
B. These rules establish uniform practice and procedure for courts exercising jurisdiction as provided in the Juvenile Act, 42 Pa.C.S. § 6301 et seq., and shall be construed to secure uniformity and simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
C. These rules shall be interpreted and construed to effectuate the purposes stated in the Juvenile Act, 42 Pa.C.S. § 6301(b).
D. To the extent practicable, these rules shall be construed in consonance with the rules of statutory construction.
Rule 1102. Citing the Juvenile Court Procedural Rules.
All juvenile court procedural rules adopted by the Supreme Court of Pennsylvania under the authority of Article V § 10(c) of the Constitution of Pennsylvania, adopted April 23, 1968, shall be known as the Pennsylvania Rules of Juvenile Court Procedure and shall be cited as ''Pa.R.J.C.P.''
The authority for rule-making is granted to the Supreme Court by Article V § 10(c) of the Pennsylvania Constitution, which states in part, ''[t]he Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts . . . if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.''
PART A. BUSINESS OF COURTS
Rule 1120. Definitions.
AGGRAVATED CIRCUMSTANCES are those circumstances specifically defined pursuant to the Juvenile Act, 42 Pa.C.S. § 6302.
CHILD is a person who is under the age of eighteen, or who was adjudicated dependent before reaching the age of eighteen years and who, while engaged in a course of instruction or treatment, requests the court to retain jurisdiction until the course has been completed, but in no event shall remain in a course of instruction or treatment past the age of twenty-one years.
CLERK OF COURTS is that official in each judicial district who has the responsibility and function under state law and local practice to maintain the official juvenile court file and docket, without regard to that person's official title.
COUNTY AGENCY is the county children and youth social service agency established pursuant to the County Institution District Law, 62 Pa.C.S. § 2305 or established through the county commissioners in the judicial districts where the County Institution District Law was abolished, 16 P. S. §§ 2161, 2168, and supervised by the Department of Public Welfare pursuant to the Public Welfare Code, 62 Pa.C.S. § 901 et seq.
COURT is the Court of Common Pleas, a court of record, which is assigned to hear dependency matters. Court shall include masters when they are permitted to hear cases under these rules. Juvenile court shall have the same meaning as court.
FAMILY SERVICE PLAN is the document in which the county agency sets forth the service objectives for a family and services to be provided to a family by the county agency.
GUARDIAN is any parent, custodian, or other person who has legal custody of a child, or person designated by the court to be a temporary guardian for purposes of a proceeding.
JUDGE is a judge of the Court of Common Pleas.
LAW ENFORCEMENT OFFICER is any person who is by law given the power to enforce the law when acting within the scope of that person's employment.
MASTER is an attorney with delegated authority to hear and make recommendations for dependency matters. Master has the same meaning as hearing officer.
MEDICAL FACILITY is any hospital, urgent care facility, psychiatric or psychological ward, drug and alcohol detoxification or rehabilitation program, or any other similar facility designed to treat a child medically or psychologically.
PARTY is a person who is legally entitled to participate in the proceedings but nothing in these Rules confers standing upon a person.
PERMANENCY PLAN is a comprehensive plan that will result in a permanent home for the child.
PETITION is a formal document by which a child is alleged to be dependent.
PETITIONER is any person, who signs or verifies, and files a petition.
POLICE OFFICER is any person, who is by law given the power to arrest when acting within the scope of that person's employment.
PROCEEDING is any stage in the dependency process occurring once a shelter care application has been submitted or a petition has been filed.
PROTECTIVE CUSTODY is when a child is taken into custody for protection as an alleged dependent child pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq. or custody may be assumed pursuant to 23 Pa.C.S. § 6315.
RECORDING is the means to provide a verbatim account of a proceeding through the use of a court stenographer, audio recording, audio-visual recording, or other appropriate means.
SHELTER CARE FACILITY is a physically unrestricted facility that provides temporary care of a child and is approved by the Department of Public Welfare.
VERIFICATION is a written statement made by a person that the information provided is true and correct to that person's personal knowledge, information, or belief and that any false statements are subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities.
The county agency is a party to the proceeding and should not function as the ''Clerk of Courts.''
The definition of ''clerk of courts'' should not necessarily be interpreted to mean the office of clerk of courts as set forth in 42 Pa.C.S. § 102, but instead refers to that official who maintains the official juvenile court files and docket regardless of the person's official title in each judicial district. It is to be determined locally which official is to maintain these records and the associated docket.
The county institution districts in counties of the fourth, fifth, sixth, seventh, and eighth classes were abolished pursuant to 16 P. S. § 2161. It is the county commissioners' duties in the fourth, fifth, sixth, seventh, and eighth classes to provide the children and youth social service agency with the necessary services for the agency to provide care for the child. See 16 P. S. § 2168.
Under the term ''court,'' to determine if masters are permitted to hear cases, see Rule 1187.
For the family service plan, see 55 Pa. Code § 3130.61
The definition of ''law enforcement officer'' does not give the power of arrest to any person who is not otherwise given that power by law.
The term ''petitioner'' may include any person; however, if the person is not the county agency, an application to file a petition pursuant to Rule 1320 is to be made. If the court, after a hearing, grants the application, the applicant may file a petition.
Rule 1121. Local Rules.
A. For the purpose of this rule, the term, ''local rule'' shall include every rule, regulation, directive, policy, custom, usage, form, or order of general application, however labeled or promulgated, adopted or enforced by a court of common pleas to govern dependency practice and procedure, which requires a party or party's attorney to do or refrain from doing something.
B. All local rules promulgated before the effective date of this rule are hereby vacated on the date this rule becomes effective.
C. Local rules shall not be inconsistent with any rule of the Supreme Court or any Act of Assembly.
1) Each judicial district may promulgate new local rules that do not conflict with the Rules of Juvenile Court Procedure.
2) Local rules shall be given numbers that are keyed to the number of the Rules of Juvenile Court Procedure to which the local rules correspond.
D. A local rule shall not become effective and enforceable until the adopting court has fully complied with all the following requirements:
1) A local rule shall be in writing.
2) Seven certified copies of the local rule shall be filed by the court promulgating the rule with the Administrative Office of Pennsylvania Courts.
3) Two certified copies of the local rule shall be distributed by the court promulgating the rule to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
4) One certified copy of the local rule shall be filed by the court promulgating the rule with the Juvenile Court Procedural Rules Committee.
5) The local rules shall be kept continuously available for public inspection and copying in the office of the clerk of courts. Upon request and payment of reasonable costs of reproduction and mailing, the clerk shall furnish to any person a copy of any local rule.
E. A local rule shall become effective not less than thirty days after the date of publication of the rule in the Pennsylvania Bulletin.
F. No case shall be dismissed nor request for relief granted or denied because of the failure to comply with a local rule. In any case of noncompliance with a local rule, the court shall alert the party to the specific provision at issue and provide a reasonable time for the attorney to comply with the local rule.
G. The Juvenile Court Procedural Rules Committee may at any time recommend that the Supreme Court suspend, vacate, or require amendment of a local rule and may suspend that local rule pending action by the Court on that recommendation.
The purpose of this rule is to further the policy of the Supreme Court to implement the unified judicial system under the Constitution of 1968, to facilitate the statewide practice of law under this Court's general rules, and to promote the further policy that a general rule of juvenile court procedure normally preempts the subject covered. It is intended that local rules should not repeat general rules or statutory provisions verbatim or substantially verbatim nor should local rules make it difficult for attorneys to practice law in several counties.
The caption or other words used as a label or designation is not to determine whether something is or establishes a local rule; if the definition in paragraph (A) of this rule is satisfied, the matter is a local rule regardless of what it may be called. The provisions of this rule also are intended to apply to any amendments to a ''local rule.'' Nothing in this rule is intended to apply to case-specific orders.
Paragraph (B) vacates all current local rules on the effective date of this rule. The local rules are to be repromulgated to comply with this rule. This includes rekeying pursuant to paragraph (C)(2) and meeting the appropriate filing requirements under paragraph (D).
To simplify the use of local rules, local dependency procedural rules are required to be given numbers that are keyed to the number of the general dependency procedural rules to which the local rules correspond. This requirement is not intended to apply to local rules that govern the general business of the court and which do not correspond to a general dependency procedural rule.
The purpose of paragraph (D) is to emphasize that the adopting authority is to comply with all the provisions of paragraph (D) before any local rule, or any amendment to local rules, will be effective and enforceable.
Paragraph (D)(5) requires that a separate consolidated set of local rules be maintained in the clerk's office.
The Administrative Office of Pennsylvania Courts maintains a web-page containing the texts of local rules. That web-page is located at: http://www.courts.state.pa.us/judicial-council/local-rules/index.htm.
Although under paragraph (E) a local rule is not to be effective until at least thirty days after the date of publication in the Pennsylvania Bulletin, when a situation arises that requires immediate action, the local court may act by specific orders governing particular cases in the interim before an applicable local rule becomes effective.
The purpose of paragraph (F) is to prevent the dismissal of cases, or the granting or denial of requested relief, because a party has failed to comply with a local rule. In addition, paragraph (F) requires that the party be alerted to the local rule, and be given a reasonable amount of time to comply with the local rule.
After the court has alerted the party to the local rule pursuant to paragraph (F), the court may impose a sanction for subsequent noncompliance either on the attorney or the party if unrepresented, but may not dismiss the case, or grant or deny relief because of non-compliance.
Rule 1122. Continuances.
A. Generally. In the interests of justice, the court may grant a continuance on its own motion or the motion of any party. On the record, the court shall identify the moving party and state its reasons for granting or denying the continuance.
B. Notice and rescheduling. If a continuance is granted, all persons summoned to appear shall be notified of the date, place, and time of the rescheduled hearing.
Whenever possible, continuances should not be granted when they could be deleterious to the safety or well-being of a party. The interests of justice require the court to look at all the circumstances, effectuating the purposes of the Juvenile Act, 42 Pa.C.S. § 6301, in determining whether a continuance is appropriate.
A party seeking a continuance should notify the court and opposing counsel as soon as possible. Whenever possible, given the time constraints, notice should be written.
Under paragraph (B), if a person is summoned to appear and the case is continued, the party is presumed to be under the scope of the original summons and a new summons is not necessary.
See Rules 1344 and 1345 for motion and filing procedures.
See In re Anita H., 351 Pa. Super. 342, 505 A.2d 1014 (1986).
Rule 1123. Subpoenas.
A. Contents. A subpoena in a dependency case shall:
1) order the witness named to appear before the court at the date, time, and place specified;
2) order the witness to bring any items identified or described;
3) state on whose behalf the witness is being ordered to testify; and
4) state the identity, address, and phone number of the person who applied for the subpoena.
1) Method of Service. A subpoena shall be served upon a witness by:
a) in-person delivery;
b) registered or certified mail, return receipt requested; or
c) first class mail.
C. Duration. A subpoena shall remain in force until the end of a proceeding.
D. Bench Warrant. If any subpoenaed person fails to appear for the hearing and the court finds that sufficient notice was given, the court may issue a bench warrant.
A subpoena duces tecum is to set forth with particularity, the documents, records, or other papers to be produced at the hearing. The items sought are to be relevant to the proceedings. See Rule 1340 on discovery, In re J.C., 412 Pa. Super. 369, 603 A.2d 627 (1992), and In re A.H., 763 A.2d 873 (Pa. Super. Ct. 2000) for production of documents necessary to prepare for a hearing.
For power to compel attendance, see 42 Pa.C.S. § 6333. Nothing in this rule prohibits the court from holding a contempt hearing. See In re Crawford, 360 Pa. Super. 36, 519 A.2d 978 (1987) for punishment of contempt (children). See also In re Griffin, 456 Pa. Super. 440, 690 A.2d 1192 (1997) (foster parents), Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976) (county agency), and In re Rose, 161 Pa. Super. 204, 54 A.2d 297 (1947) (parents) for additional guidance on contempt for other parties.
Rule 1124. Summons.
A) Requirements of the summons. The summons shall:
1) be in writing;
2) set forth the date, time, and place of the hearing;
3) instruct the parties about the right to counsel; and
4) give a warning stating that the failure to appear for the hearing may result in arrest.
B) Method of Service. The summons shall be served:
1) in-person; or
2) by certified mail, return receipt and first-class mail.
C) Exception to service. If service cannot be accomplished pursuant to paragraph (B), the party may move for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the person sought to be served and the reasons why service can not be made.
D) Bench Warrant. If any summoned person fails to appear for the hearing and the court finds that sufficient notice was given, the court may issue a bench warrant.
In paragraph (D), this rule provides that a summoned person is to fail to appear and the court is to find that sufficient notice was given before a bench warrant may be issued. The Juvenile Act, 42 Pa.C.S. § 6335(c), which provides for the issuance of arrest warrants if the child may abscond or may not attend or be brought to a hearing, is suspended to the extent that it conflicts with this rule. See Rule 1800 for suspensions.
Rule 1126. Defects in Form, Content, or Procedure.
A child shall not be released, nor shall a case be dismissed, because of a defect in the form or content of the pleading or a defect in the procedures of these rules, unless the party raises the defect prior to the commencement of the adjudicatory hearing, and the defect is prejudicial to the rights of a party.
A petition, emergency custody authorization form, shelter care application, or warrant may be amended at any time to remedy any defect in form or content. The court may also issue another remedy as interests of justice require. Nothing in this rule is to prevent the filing of a new emergency custody authorization form, a new or amended petition, or the reissuance of process.
Rule 1127. Recording and Transcribing Juvenile Court Proceedings.
A. Recording. There shall be a recording of all dependency proceedings, including proceedings conducted by masters, except as provided in Rule 1242(B)(2).
B. Transcribing. Upon the motion of any party, upon its own motion, or as required by law, the court shall order the record to be transcribed.
C. Modifying. At any time before an appeal is taken, the court may correct or modify the record in the same manner as is provided by Rule 1926 of the Pennsylvania Rules of Appellate Procedure.
Some form of record or transcript is necessary to permit meaningful consideration of claims of error and effective appellate review. In re J.H., 788 A.2d 1006 (Pa. Super. Ct. 2001). See, e.g., Pa.R.A.P. Rules 1922, 1923, 1924; Commonwealth v. Fields, 478 Pa. 479, 387 A.2d 83 (1978); Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978). This rule is intended to provide a mechanism to ensure appropriate recording and transcribing of court proceedings. Pursuant to Rule 1800, 42 Pa.C.S. § 6336(c) was suspended only to the extent that all proceedings are to be recorded, except as provided in Rule 1242 (B)(2). Full minutes are not recordings. This change was to effectuate effective appellate review.
The rule is intended to apply to all dependency proceedings and to ensure all proceedings are recorded, including proceedings before masters, except for shelter care hearings.
Paragraph (B) of the rule is intended to authorize courts to require transcription of only such portions of the record, if any, as are needed to review claims of error.
Paragraph (C) provides a method for correcting and modifying transcripts before an appeal is taken by incorporating Pa.R.A.P. 1926, which otherwise applies only after an appeal has been taken. It is intended that the same standards and procedures apply both before and after appeal.
Rule 1128. Presence at Proceedings.
A. General Rule. All parties shall be present at any proceeding unless the exceptions of paragraph (B) apply.
1) Absence from 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. 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. Order appearance. The court may order any person having the physical custody or control of a child to bring the child to any proceeding.
Under paragraph (B)(1), if a child is an infant, that would qualify as good cause. 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.
See In re Adoption of S.B.B. and E.P.R., 372 Pa. Super. 456, 539 A.2d 883 (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.
Rule 1129. Open Proceedings (Reserved).
Rule 1130. Public Discussion by Court Personnel of Pending Matters.
All court personnel including, among others, court clerks, bailiffs, tipstaffs, sheriffs, and court stenographers, are prohibited from disclosing to any person, without authorization from the court, information relating to a pending dependency case that is not part of the court record otherwise available to the public or not part of the record in an open proceeding. This rule specifically prohibits the divulgence of information concerning arguments and proceedings that are closed proceedings, held in chambers, or otherwise outside the presence of the public.
Rule 1133. Motion to Intervene.
A. Contents. The motion to intervene shall include:
1) the name and address of the person moving to intervene;
2) the relationship of the intervening person to the child;
3) the contact between the child and the intervening person;
4) the grounds on which intervention is sought; and
5) the request sought.
B. Action by court. Upon the filing of a motion to intervene and after a hearing, the court shall enter an order granting or denying the motion.
Under paragraph (B), a motion may be denied if, among other reasons, there are insufficient grounds for the motion, the interest of the movant is already adequately represented, the motion for intervention was unduly delayed, or the intervention will unduly delay or prejudice the adjudication of dependency or the rights of the parties.
To move for intervention in a dependency case, a person is to show that the interest is substantial, direct, and immediate. See, e.g., South Whitehall Township Police Serv. v. South Whitehall Township, 521 Pa. 82, 555 A.2d 793 (1989).
Standing is conferred upon a person if the person cares for or controls the child or is accused of abusing the child. In re J.P., 832 A.2d 492 (Pa. Super. Ct. 2003); In re L.J., 456 Pa. Super. 685, 691 A.2d 520 (1997). See 23 Pa.C.S. § 5313 for grandparent intervention. See also R.M. v. Baxter, 565 Pa. 619, 777 A.2d 446 (2001) (grandparent standing); Mitch v. Bucks Co. Children and Youth Social Service Agency, 383 Pa. Super. 42, 556 A.2d 419 (1989) (prospective adoptive parent standing); In re M.K., 431 Pa. Super. 198, 636 A.2d 198 (1994) (alleged abuser standing). For distinction between foster parent and prospective adoptive parent standing, see In re N.S., 845 A.2d 884 (Pa. Super. Ct. 2004).
A non-custodial parent may intervene in a dependency petition filed by a third party to protect the child from being adjudicated dependent and placed in the custody of the Commonwealth. In re Anita H., 351 Pa. Super. 342, 505 A.2d 1014 (1986).
See also In re Michael Y., 365 Pa. Super. 488, 530 A.2d 115 (1987) and In re R.T. & A.T., 405 Pa. Super. 156, 592 A.2d 55 (1991) for additional parties to proceedings.
See Rule 1344 for motions and Rule 1345 for service.
Rule 1134. Proceedings in Camera.
Upon motion by any party or on the court's own motion, in camera proceedings are to be recorded and each party's attorney shall be present.
See In re Leslie H., 329 Pa. Super. 453, 478 A.2d 876 (1984).
If a party is not represented, the court is to make reasonable efforts to protect the due process rights of the party.
Rule 1135. Captions.
All court documents and orders shall contain a caption that includes the following:
1) ''In the Interest of (the child's name)'';
2) the child's case docket number; and
3) the name of the court.
PART B(1). EXAMINATION AND TREATMENT OF CHILD
Rule 1145. Application or Motion for Examination and Treatment of a Child.
A. Pre-petition treatment. Prior to the filing of a dependency petition, an application to the court may be made to treat a child when prompt treatment is necessary.
B. Post-petition examination and treatment. After a petition has been filed, a motion for examination and treatment of a child may be filed.
The term ''application'' is used in paragraph (A) of this rule. An application is to be made to the court if there is no formal court action pending. Once a dependency petition is filed, a motion, as provided in paragraph (B), is the proper course of action for seeking examination and treatment of a child. All parties are notified and copied on all motions. The procedures of Rule 1344 are to be followed. See Rule 1344.
It should be noted that paragraph (A) only relates to treatment of a child when prompt treatment is necessary.
Pursuant to 42 Pa.C.S. § 6339(b), the court may order the child to be examined at a suitable place by a physician or psychologist and may also order medical or surgical treatment of a child who is suffering from a serious physical condition or illness, which in the opinion of a licensed physician, requires prompt treatment, even if the guardian has not been given notice of a hearing, is not available, or without good cause informs the court of his refusal to consent to the treatment. 42 Pa.C.S. § 6339(b). In addition, 42 Pa.C.S. § 6357 provides a custodian to whom legal custody has been given by the court has the right to the physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child. An award of legal custody shall be subject to the conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child as determined by the court. 42 Pa.C.S. § 6357.
If a child has been adjudicated dependent, the court may order that the county agency participate in the treatment plan of the child as necessary to protect the health, safety, or welfare of the child, including discussions with the individual, facility, or program providing treatment, and the child or the child's guardian in furtherance of the disposition. 42 Pa.C.S. § 6352.1.
Under paragraph (B), if the legal custodian is the county agency, the county agency is to comply with the regulations of 55 Pa. Code §§ 3130.91 and 3680.52.
PART B(2). COUNSEL
Rule 1150. Attorneys--Appearances and Withdrawals.
1) The Guardian ad litem and counsel for each party, except under paragraph (A)(3), shall file an entry of appearance with the clerk of courts promptly after being retained and serve a copy on all other parties.
a) If a firm name is entered, the name of the individual lawyer who is designated as being responsible for the conduct of the case shall be entered.
b) The entry of appearance shall include the attorney's address, phone number, and attorney ID number.
2) When counsel is appointed pursuant to Rule 1151 (Assignment of Counsel), the filing of the appointment order shall enter the appearance of appointed counsel.
3) The president judge of each judicial district may enter an order stating that the specified Solicitor's appearance is automatically entered in every dependency case unless another attorney's appearance is entered pursuant to paragraph (A)(1).
B. Duration. Once an appearance is entered or the court assigns counsel for the child, counsel shall represent the child until the closing of the dependency case, including any proceeding upon direct appeal and permanency review, unless permitted to withdraw pursuant to paragraph (C).
1) Upon motion, counsel shall be permitted to withdraw only:
a) by order of the court for good cause shown; or
b) if new counsel has entered an appearance in accordance with paragraph (A).
2) A motion to withdraw shall be:
a) filed with the clerk of courts, and a copy concurrently served on the other parties' attorneys, or the party, if unrepresented; or
b) made orally on the record in open court in the presence of the parties.
Paragraph (A)(3) allows the Solicitor to be automatically entered in the record as counsel for the agency. The order is to include the attorney's address, phone number, and attorney ID number.
Under paragraph (C), withdrawal is presumed when a court's jurisdiction is terminated because the child reaches the age of twenty-one. See 42 Pa.C.S. § 6302.
Under paragraph (C)(1)(a), a court can terminate an attorney's representation if there is good cause shown. The court should allow an attorney to withdraw from a case for good cause if the standards for termination of representation, as provided for in the Rules of Professional Conduct 1.16, are met.
Under paragraph (C)(1)(b), because the county agency will be on notice of the identity of the new attorney, the agency should comply with the discovery requirements of Rule 1340.
Under paragraph (C)(2), counsel is to file a motion to withdraw in all cases. Counsel's obligation to represent a party, whether as retained or appointed counsel, remains until leave to withdraw is granted by the court. See e.g., Com. v. Librizzi, 810 A.2d 692 (Pa. Super. Ct. 2002). The court is to make a determination of the status of the case before permitting counsel to withdraw. Although there are many factors considered by the court in determining whether there is good cause to permit the withdrawal of counsel, when granting leave, the court should determine if new counsel needs to be appointed, and that the change in attorneys will not delay the proceedings or prejudice the party, particularly concerning time limits.
See Rule 1167 for service of court orders.
See also Rule 1613 for termination of court supervision.
Rule 1151. Assignment of Guardian ad litem and Counsel.
A. Guardian ad litem for child. The court shall assign a guardian ad litem to represent the legal interests and the best interests of the child if a proceeding has been commenced pursuant to Rule 1200 alleging a child to be dependent who:
1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the physical, mental or emotional health, or morals;
2) has been placed for care or adoption in violation of law;
3) has been abandoned by parents, guardian, or other custodian;
4) is without a parent, guardian or legal custodian; or
5) is born to a parent whose parental rights with regard to another child have been involuntarily terminated under 23 Pa.C.S. § 2511 (relating to grounds for involuntary termination) within three years immediately preceding the date of birth of the child and conduct of the parent poses a risk to the health, safety, or welfare of the child.
B. Counsel for child. The court shall appoint legal counsel for a child:
1) if a proceeding has been commenced pursuant to Rule 1200 alleging a child to be dependent who:
a) while subject to compulsory school attendance is habitually and without justification truant from school;
b) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of the child's guardian and who is ungovernable and found to be in need of care, treatment, or supervision;
c) is under the age of ten years and has committed a delinquent act;
d) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (B)(1)(b); or
e) has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (B)(1)(b); or
2) upon order of the court.
C. Counsel and Guardian ad litem for child. If a child has legal counsel and a guardian ad litem, counsel shall represent the legal interests of the child and the guardian ad litem shall represent the best interests of the child.
D. Time of appointment.
1) Child in custody. The court shall appoint a guardian ad litem or legal counsel immediately after a child is taken into protective custody and prior to any proceeding.
2) Child not in custody. If the child is not in custody, the court shall appoint a guardian ad litem or legal counsel for the child when a dependency petition is filed.
E. Counsel for other parties. If counsel does not enter an appearance for a party, the court shall inform the party of the right to counsel prior to any proceeding. If counsel is requested by a party in any case, the court shall assign counsel for the party if the party is without financial resources or otherwise unable to employ counsel. Counsel shall be appointed prior to the first court proceeding.
See 42 Pa.C.S. §§ 6302, 6311, and 6337.
The guardian ad litem for the child may move the court for appointment as legal counsel and assignment of a separate guardian ad litem, especially if the information that the guardian ad litem is privy to is rise for the conflict and can be used to the detriment of the child. To the extent 42 Pa.C.S. § 6311(b)(9) is inconsistent with this rule, it is suspended. See Rule 1800. See also Pa.R.P.C. 1.7 and 1.8. Under paragraph (C), legal counsel represents the legal interests of the child and the guardian ad litem represents the best interests of the child.
Rule 1152. Waiver of Counsel.
1) Guardian ad litem. A child may not waive the right to a guardian ad litem.
2) Legal Counsel. A child may waive legal counsel if:
a) the waiver is knowingly, intelligently, and voluntarily made; and
b) the court conducts a colloquy with the child on the record.
B. Other parties. Except as provided in paragraph (A), a party may waive the right to counsel if:
1) the waiver is knowingly, intelligently, and voluntarily made; and
2) the court conducts a colloquy with the party on the record.
C. Stand-by counsel. The court may assign stand-by counsel if a party waives counsel at any proceeding or stage of a proceeding.
D. Notice and revocation of waiver. If a party waives counsel for any proceeding, the waiver only applies to that proceeding, and the party may revoke the waiver of counsel at any time. At any subsequent proceeding, the party shall be informed of the right to counsel.
Under paragraph (A), a child may not waive the right to a guardian ad litem. The right of waiver to legal counsel belongs to the child, not the guardian. See Rule 1800, which suspends 42 Pa.C.S. § 6337, which provides that counsel must be provided unless the guardian is present and waives counsel for the child.
It is recommended that, at a minimum, the court ask questions to elicit the following information in determining a knowing, intelligent, and voluntary waiver of counsel:
1) Whether the party understands the right to be represented by counsel;
2) Whether the party understands the nature of the dependency allegations and the elements of each of those allegations;
3) Whether the party is aware of the dispositions and placements that may be imposed by the court, including foster care placement and adoption;
4) Whether the party understands that if he or she waives the right to counsel, he or she will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules;
5) Whether the party understands that counsel may be better suited to defend the dependency allegations; and
6) Whether the party understands that the party has many rights that, if not timely asserted, may be lost permanently; and if errors occur and are not timely objected to, or otherwise timely raised by the party, the ability to correct these errors may be lost permanently.
Rule 1154. Duties of Guardian ad litem.
A guardian ad litem shall:
1) Meet with the child as soon as possible following assignment pursuant to Rule 1151 and on a regular basis thereafter in a manner appropriate to the child's age and maturity;
2) On a timely basis, be given access to relevant court and county agency records, reports of examination of the guardians or the child, and medical, psychological, and school records;
3) Participate in all proceedings, including hearings before masters, and administrative hearings and reviews to the degree necessary to adequately represent the child;
4) Conduct such further investigation necessary to ascertain the facts;
5) Interview potential witnesses, including the child's guardians, caretakers, and foster parents, examine and cross-examine witnesses, and present witnesses and evidence necessary to protect the best interests of the child;
6) At the earliest possible date, be advised by the county agency having legal custody of the child of:
a) any plan to relocate the child or modify custody or visitation arrangements, including the reasons, prior to the relocation or change in custody or visitation; and
b) any proceeding, investigation, or hearing under the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq. or the Juvenile Act, 42 Pa.C.S. § 6301 et seq., directly affecting the child;
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;
8) Explain the proceedings to the child to the extent appropriate given the child's age, mental condition, and emotional condition; and
9) Advise the court of the child's wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child's wishes. When appropriate because of the age or mental and emotional condition of the child, determine to the fullest extent possible the wishes of the child and communicate this information to the court.
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