In Re: Order Amending Rules 163, 195, 512 & 1147 and Adopting Rules 148, 1146 & 1148 of Juv Ct Pro ( 2018 )

JUVENILE COURT PROCEDURAL RULES COMMITTEE
FINAL REPORT1
Amendment of Pa.R.J.C.P. 163, 195, 512, and 1147
New Pa.R.J.C.P. 148, 1146, and 1148
On December 21, 2018, the Supreme Court amended Rules of Juvenile Court
Procedure 163, 195, 512, and 1601, and adopted new Rules 148, 1146, and 1148 to
improve the educational stability of juveniles and children, effective May 1, 2019. The
changes consist of three components: 1) changes to implement the Act of November 3,
2016, P.L. 1061, concerning truancy matters; 2) changes to update Rule 1147 in light of
Act 94 of 2015, P.L. 559, which amended 42 Pa.C.S. § 6351(F)(8); and 3) the creation
of procedures for the judicial determination of the delivery of educational services for
dependent/delinquent youth in placement.
This proposal was previously published for comment at 47 Pa.B. 3336 (June 7,
2017). Following the review and deliberation on all the comments received, the
Committee revised the proposal in several aspects.
Truancy
In 2016, Pennsylvania substantially revised its truancy laws. Section 5 of the Act
of November 3, 2016, P.L. 1061, amended Section 1333.3(F)(2) of the Public School
Code, 24 P.S. § 13-1333.3(f)(2). In response, the Committee proposed amending Rule
195 to add paragraph (A)(13) to recognize that a juvenile probation officer (JPO) may
receive allegations that a child has also failed to satisfy penalties arising from a truancy
citation. Consistent with the statute, the Rule first required a local rule permitting the
receipt of these allegations. It is contemplated that the local rule would provide
guidance as to further actions of the juvenile probation officer with regard to those
allegations.
A commenter suggested that Rule 195 should discuss the purpose for which the
JPO may receive allegations. The Committee concluded that the statute, 24 P.S. § 13-
1333.3(f)(2), speaks for itself. While the statute does not explicitly provide for
diversionary programs, the Committee saw merit in the continued use of diversionary
programs when the President Judge via local rule approved such a program.
Accordingly, the Committee revised the Comment to Rule 195 to specifically reference
the availability of diversionary programs.
1 The Committee’s Final Report should not be confused with the official Committee
Comments to the rules. Also note that the Supreme Court does not adopt the
Committee’s Comments or the contents of the Committee’s explanatory Final Reports.
The Committee believed the truancy legislation also provided an opportunity to
coordinate actions between the dependency court and the court where a truancy
citation is filed when a dependent child or a “person in parental relation” to the child is
charged with truancy. As amended, 24 P.S. § 13-1333.2(b)(1) requires the court to
send a hearing notice to the county agency when a truancy citation is filed. Utilizing this
notice mechanism, Rule 1146 would require the county agency to then provide notice of
the hearing to the dependency court and the parties. Thereafter, the dependency court
judge and the truancy court judge could coordinate proceedings.
Based upon the comments, the Committee realized that the proposed language
may be interpreted to require notice be given to the dependency court in truancy matter.
That was not the intention. Post-publication, Rule 1146 was revised to clarify that the
county agency need only serve a copy of the truancy notice on the court and parties if
there was an open dependency matter.
Education Decision Makers (Rule 1147)
Act 94 of 2015 amended 42 Pa.C.S. § 6351(F)(8) to require at each permanency
hearing a judicial determination of the services needed to assist a child who was 14
years of age or older to successfully transition to adulthood. The amendment lowered
the age of applicability from 16 years of age to 14. This amendment was incorporated
into Rule 1608(D)(1)(k) on December 9, 2015.
Rule 1147(C)(1)(d), regarding the duties of educational decision makers
(“EDMs”), requires EDMs to inquire and act to ensure that a child 16 years of age or
older is receiving the necessary educational services to transition to independent living.
Upon review of the legislation, the Committee believed that “services” in Section
6351(F)(8) of the Juvenile Act included “educational services” as used in Rule 1147.
Accordingly, the Committee proposed to amend Rule 1147 and the Comment to reflect
that interpretation, including the lower age.
Educational Stability (Rule 148 and 1148)
The Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. §
6311(g)(1)(E), requires that a child in placement remain in their school of origin unless
it is not in the child’s best interest. In response, the Committee proposed new Rule
1148 to establish a procedural requirement for the court to conduct a best interest
analysis if a child in placement was not to remain in their school of origin. The Rule’s
purpose was to maintain the child’s educational stability. Further, this requirement
would extend beyond dependency proceedings to include the removal of a juvenile from
home in delinquency proceedings via new Rule 148. Both Rule 148 and Rule 1148
would be applicable to any order resulting in the placement of a child or the removal of a
juvenile from home.
Several commenters suggested “or a change in placement” be added to
paragraph (A) of Rules 148 and 1148 so that educational needs were addressed not
just upon removal, but also when there was a change in placement. The Committee
agreed and revised the text to add this suggestion.
There was a suggestion to strike “community’s best interest” in paragraph (B) of
Rule 148. The Committee believed that the court was required to consider the
protection of the community in delinquency matters and it was a sufficiently important
factor when considering educational needs that it should be specifically included in the
rule text. The language was revised from “community’s best interest” to “protective of
the community” to more closely reflect the language of the Juvenile Act. This revision
was made to paragraph (B) and (C).
A commenter recommended adding a new paragraph (E) that would require the
court’s decision regarding the juvenile’s schooling to be in a separate order and served
on the school responsible for educating the juvenile. The Committee did not favor
requiring a separate order - a separate order was not needed in every case so it did not
seem efficient to require a separate order in every case. There may be times when a
separate order is necessary to avoid disclosing unnecessary details to the school, but
the courts have the discretion to enter such orders. Notwithstanding, the Committee
favored including a citation to Rule 148 in the Comment to Rule 163 (Release of
Information to School) to indicate that sharing educational stability information was
permitted.
Rule 1148 is the dependency analog to Rule 148. While the procedures set forth
in both rules are very similar, the stakeholders in delinquency and dependency
proceedings differ, which is reflected in the comments to Rule 1148. It is beyond
countenance that the court is obligated to ensure the stability and appropriateness of a
child’s education. See, e.g., Pa.R.J.C.P. 1512(D)(1)(i); Pa.R.J.C.P. 1609(E)(1)-(2). The
commentary accompanying the Rules requires the court to address the child’s
educational stability, including 1) the child’s right to remain in the same school
regardless of a change in placement when it is in the child’s best interest; 2) the
immediate enrollment when a school change is in the child’s best interest; and 3)
consideration of the school’s proximity in all placement changes. The changes brought
by the Every Student Succeeds Act, Pub. L. 114-95, amending 20 U.S.C. § 6311, only
serve to reinforce what is already required by the Rules - once the child is subject to
juvenile court jurisdiction, the court is required to make educational decisions in the
child’s best interest.