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

PART B(1)
EDUCATION AND HEALTH OF JUVENILE
147. Educational [d]Decision [m]Maker[.]
148. Educational Stability & Removal From Home
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[This is an entirely new rule.]
RULE 148. EDUCATIONAL STABILITY & REMOVAL FROM HOME
A. General Rule. Any order resulting in the removal of the juvenile from home or a
change in placement shall address the educational stability of the juvenile.
B. School of Origin. A juvenile removed from home shall remain in their school of
origin unless the court finds remaining in the school of origin is not in the juvenile’s
best interest or protective of the community. If the court finds that it is not in the best
interest for the juvenile or protective of the community to remain in the school of
origin, then the court may order the juvenile to be enrolled in another school that
best meets the juvenile’s needs.
C. Another School. If a court orders the juvenile to be enrolled in another school
pursuant to paragraph (B), then the juvenile shall attend a public school unless the
court finds that a public school is not in the best interest of the juvenile or protective
of the community.
Comment
This rule is intended to apply at any point in a delinquency proceeding when the
juvenile is removed from home, including pre-dispositional detention placement and
post-dispositional modification resulting in the juvenile’s out of home placement or a
change to that placement. This rule is intended to complement rather than supersede
the requirements of Rule 512(D)(6).
In paragraph (B), the best interest determination should be based on factors
including the appropriateness of the current educational setting considering the
juvenile’s needs, the proximity of the school of origin relative to the placement location,
and the protection of the community. This paragraph is intended to facilitate
educational stability while the juvenile remains under the jurisdiction of the Juvenile
Court and to codify the presumption that a juvenile is to remain in their school of origin
absent evidence that it is not in the best interest of the juvenile or protective of the
community to do so.
In paragraph (C), circumstances indicating that it may not be in the best interest
for the juvenile to attend a public school includes the security and safety of the juvenile
and treatment needs. Paragraph (C) is intended to codify the presumption that a
juvenile is to attend public school while in placement absent evidence demonstrating
that it is not in the best interest of the juvenile or protective of the community to do so.
The bundling of residential services and educational services should not be permitted
without a court order authorizing such.
For release of information to school, see Rule 163.
Official Note: Rule 148 adopted December 21, 2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 148 published with the Court’s
Order at __ Pa.B. __ (__ __, 2018).
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RULE 163. RELEASE OF INFORMATION TO SCHOOL
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Comment
For educational stability of juvenile when removed from home, see Rule
148.
Pursuant to paragraph (B), the juvenile probation office is required to provide
notice to the building principal or his or her designee for maintaining court records
separately from official school records. Some school districts have established local
policies relating to the receipt of this information that requires the information to be
provided to a school district official other than a building principal. That individual
should be regarded as the building principal’s designee with respect to the provisions of
this rule.
* * *
Official Note: Rule 163 adopted April 1, 2005, effective October 1, 2005. Amended
May 21, 2012, effective August 1, 2012. Amended July 28, 2014, effective September
29, 2014. Rule 163 amended December 21, 2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 163 published with the Court’s
Order at 35 Pa.B. 2214 (April 16, 2005). Final Report explaining the amendments to
Rule 163 published with the Court’s Order at 42 Pa.B. 3203 (June 9, 2012). Final
Report explaining the amendments to Rule 163 published with the Court’s Order at 44
Pa.B. 5447 (August 16, 2014). Final Report explaining the amendments to Rule 163
published with the Court’s Order at __ Pa.B. __ (__ __, 2018).
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RULE 195. POWERS, DUTIES, AND TRAINING OF A JUVENILE PROBATION
OFFICER
A. Powers and Duties of a Juvenile Probation Officer. Subject to any limitation
imposed by the court, a juvenile probation officer shall:
1) take children, juveniles, and minors into custody pursuant to:
a) the Juvenile Act, 42 Pa.C.S. §§ 6304 and 6324;
b) the Child Protective Services Law (CPSL), 23 Pa.C.S. §§ 6301 et
seq.;
c) a bench warrant as set forth in Rules 140, 141, and 1140; or
d) Rule 1202;
2) authorize detention or shelter care for a juvenile, and the shelter care of a
child, pursuant to 42 Pa.C.S. §§ 6304, 6325, or 6331;
3) receive and examine written allegations unless the District Attorney has
elected to receive and approve all written allegations pursuant to Rule
231(B);
4) make appropriate referrals for informal adjustment, consent decree, or other
diversionary programs;
5) file petitions if diversionary programs are not appropriate unless the District
Attorney has elected to file all petitions pursuant to Rule 330(A);
6) make investigations, reports, including social studies pursuant to Rule 513,
and recommendations to the court;
7) make appropriate referrals to private and public agencies, psychological or
psychiatric providers, drug and alcohol facilities or programs, or any other
necessary treatments or programs;
8) communicate to the court and parties, and facilitate any special needs,
including health and education, of the juvenile;
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9) supervise and assist a juvenile placed on probation or a child under the
court’s protective supervision or care;
10) search the person and property of juveniles pursuant to 42 Pa.C.S. §
6304(a.1);
11) regularly oversee and visit juveniles in placement facilities;
12) report suspected child abuse pursuant to 23 Pa.C.S. § 6311; [and]
13) receive allegations that a child has failed to satisfy penalties for
violating compulsory school attendance, as permitted by local rule;
and
[13]14) perform any other functions as designated by the court.
B. Limitations on [p]Powers and [d]Duties. The President Judge of each judicial
district may limit the power and duties of its juvenile probation officers by local rule.
C. Training. [No later than January 1, 2012 or w]Within 180 days after being
appointed or employed, a juvenile probation officer shall be trained on:
1) the Juvenile Act;
2) the Pennsylvania Rules of Juvenile Court Procedure;
3) the Child Protective Services Law (CPSL); and
4) any local procedures.
Comment
Pursuant to paragraph (A)(1), a juvenile probation officer has the authority to take
children, juveniles, and minors into custody pursuant to the Juvenile Act, the CPSL, a
bench warrant, or Rule 1202. 23 Pa.C.S. §§ 6301 et seq. and 42 Pa.C.S. §§ 6301 et
seq.
When a juvenile is under the court’s supervision, the juvenile probation officer
may take a juvenile into custody pursuant to the Juvenile Act, 42 Pa.C.S. §§ 6304(a)(3)
and (5) and 6324(1) through (5), and bench warrants as set forth in Rules 140, 141, and
1140.
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When a child, juvenile, or minor is not under the court’s supervision, the juvenile
probation officer, as a duly authorized officer, may take a child, juvenile, or minor into
custody pursuant to the Child Protective Services Law (CPSL), 23 Pa.C.S. § 6315 and
the Juvenile Act, 42 Pa.C.S. §§ 6304(a)(3) and (5) and 6324(1), (3), and (4).
A properly commissioned juvenile probation officer is vested with all the powers
and duties as set forth in 42 Pa.C.S. § 6304 and the power to take a child into protective
custody as a duly authorized officer of the court pursuant to 42 Pa.C.S. § 6324 unless
the President Judge has limited such authority pursuant to paragraph (B).
The President Judge may adopt a local rule, pursuant to the procedures of Rule
121 and Pa.R.J.A. No. 103(d), limiting the authority granted by the commission to
juvenile probation officers. In determining whether to limit the authority of juvenile
probation officers, the President Judge should consider the training and experience
necessary to perform the various duties as provided in this rule. For example, the
President Judge may choose to prohibit juvenile probation officers from taking a child into
protective custody who is believed to be in imminent danger from his or her
surroundings, but who is not under the court’s supervision as a delinquent or dependent
child. See 42 Pa.C.S. § 6324.
In situations when a juvenile probation officer takes a child into protective
custody who is in imminent danger from his or her surroundings pursuant to 42 Pa.C.S.
§ 6325, 23 Pa.C.S. § 6315, and Rule 1202, the juvenile probation officer should take the
appropriate steps to ensure the child’s safety, immediately contact the county agency,
and document for the county agency the circumstances which necessitated protective
custody. See Rule 1202 and its Comment.
The juvenile probation officer may also supervise or assist a child placed in his or
her protective supervision or care by the court. See 42 Pa.C.S. § 6304.
Pursuant to paragraph (A)(3), the juvenile probation officer is to receive written
allegations from local law enforcement agencies to determine if a case may proceed to
juvenile court. However, pursuant to Rule 231(B), the District Attorney of any county
may require initial receipt and approval of written allegations before a delinquency
proceeding may be commenced. See Rule 231(B).
Pursuant to paragraph (A)(6) and (7), the juvenile probation officer is to prepare
reports compiling the juvenile’s information for the court and make the necessary
referrals to programs supported by a need revealed during the investigation.
Pursuant to paragraph (A)(8), the juvenile probation officer is to communicate the
information to all parties before approaching the court. See Rule 136 for ex parte
communication.
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Pursuant to paragraph (A)(11), the juvenile probation officer is to oversee all
juveniles ordered to placement facilities. Juvenile probation officers should visit all
juveniles in placement facilities on a regular basis to determine if: 1) the juvenile is
receiving the appropriate treatment; and 2) the facility is meeting the needs of the child.
The Juvenile Court Judges’ Commission Standards Governing Aftercare Services
recommend that all juveniles be visited on a monthly basis. The juvenile probation
officer is to report any irregularities or controversies to the court and all parties as soon
as they are made known to the juvenile probation officer.
Pursuant to paragraph (A)(13), the President Judge may adopt a local rule
to permit the juvenile probation office to receive allegations that a child has failed
to pay fines or costs related to a truancy conviction. See 24 P.S. §13-1333.3(f)(2).
Nothing in this paragraph is intended to preclude the use of diversionary
programs to address the nonpayment of fines or costs.
Pursuant to paragraph (A)([13]14), a juvenile probation officer may perform any
other function designated by the court to carry out the purposes of the Juvenile Act.
Pursuant to paragraph (C), the juvenile probation officer is to be trained in the
Juvenile Act, the Pennsylvania Rules of Juvenile Court Procedure, the CPSL, and any
local procedures. The training is to occur within 180 days of the juvenile probation
officer’s appointment or employment. It is best practice for juvenile probation officers to
receive training within the first ninety days of employment. It is also best practice that
juvenile probation officers receive specialized training and educational updates on a
continuing basis.
Specialized training for juvenile probation officers should include delinquency and
dependency procedures and areas that address their duties as officers of the court.
Official Note: Rule 195 adopted May 20, 2011, effective July 1, 2011. Amended
December 21, 2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 195 published with the Court’s
Order at 41 Pa.B. 2839 (June 4, 2011). Final Report explaining the amendments to
Rule 195 published with the Court’s Order at __ Pa.B. __ (__ __, 2018).
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RULE 512. DISPOSITIONAL HEARING
* * *
D. Court’s [f]Findings. The court shall enter its findings and conclusions of law into
the record and enter an order pursuant to Rule 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; and
c) the provision of educational services for the juvenile pursuant to
Rule 148;
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 parental consent cannot be
obtained, authorize evaluations and treatment needed.
Comment
* * *
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Official Note: Rule 512 adopted April 1, 2005, effective October 1, 2005. Amended
May 17, 2007, effective August 20, 2007. Amended April 21, 2011, effective July 1,
2011. Amended April 29, 2011, effective July 1, 2011. Amended May 16, 2011,
effective July 1, 2011. Amended May 26, 2011, effective July 1, 2011. Amended July
18, 2012, effective October 1, 2012. Amended April 6, 2017, effective September 1,
2017. Amended May 11, 2017, effective October 1, 2017. Amended December 21,
2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 512 published with the Court’s
Order at 35 Pa.B. 2214 (April 16, 2005). Final Report explaining the amendments to
Rule 512 published with the Court’s Order at 37 Pa.B. 2506 (June 2, 2007). Final
Report explaining the amendments to Rule 512 published with the Court’s Order at 41
Pa.B. 2319 (May 7, 2011). Final Report explaining the amendments to Rule 512
published with the Court’s Order at 41 Pa.B. 2413 (May 14, 2011). Final Report
explaining the amendments to Rule 512 published with the Court’s Order at 41 Pa.B.
2684 (May 28, 2011). Final Report explaining the amendments to Rule 512 published
with the Court’s Order at 41 Pa.B. 3180 (June 25, 2011). Final Report explaining the
amendments to Rule 512 published with the Court’s Order at 42 Pa.B. 4909 (August 4,
2012). Final Report explaining the amendments to Rule 512 published with the
Court’s Order at 47 Pa.B. 2313 (April 22, 2017). Final Report explaining the
amendments to Rule 512 published with the Court’s Order at 47 Pa.B. 2969 (May 27,
2017). Final Report explaining the amendments to Rule 512 published with the
Court’s Order at __ Pa.B. __ (__ __, 2018).
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PART B(1)
EDUCATION AND HEALTH OF CHILD
1145. Application or Motion for Examination and Treatment of a Child
1146. Notice of Truancy Hearing
1147. Educational [d]Decision [m]Maker[.]
1148. Educational Stability & Placement
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[This is an entirely new rule.]
RULE 1146. NOTICE OF TRUANCY HEARING
Upon receiving written notice of a hearing regarding a citation or complaint for
truancy against a child or a person in parental relation pursuant to 24 P.S. § 13-1333.1
when the child is the subject of a dependency proceeding, the county agency shall
serve a copy of the notice upon the dependency court and parties.
Comment
Pursuant to 24 P.S. § 13-1333.2(b)(1), the court in which a truancy citation or
complaint is filed shall provide the county agency with written notice of the hearing. For
definition of “person in parental relation,” see 24 P.S. § 13-1326.
The President Judge may adopt local rules coordinating jurisdiction and
proceedings between the judge of the court where the citation or complaint was filed
and the dependency court judge. Coordination may include, but is not limited to, the
entry of an order staying the truancy proceeding for further consideration by the
dependency court.
Official Note: Rule 1146 adopted December 21, 2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1146 published with the Court’s
Order at __ Pa.B. __ (__ __, 2018).
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RULE 1147. EDUCATIONAL DECISION MAKER[.]
A. Generally. At any proceeding or upon motion, the court shall appoint an
educational decision maker for the child if it determines 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 shall receive notice of all
proceedings.
C. Duties and responsibilities. The educational decision maker shall:
1) make appropriate inquiries and take appropriate actions to ensure 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] fourteen years of age or older, is receiving
the necessary educational services to transition to [independent
living] successful adulthood;
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, and 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:
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a) meeting with the child at least once and as often as necessary to make
decisions regarding education that are in the child’s 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 particular concern for highly mobile children
whose caregivers may change and whose guardian may be unavailable. An
educational decision maker’s responsibilities may include, but are not limited to:
ensuring educational stability as mandated by 42 U.S.C. §§ 675(1)(G) and 11431 et
seq.; ensuring prompt enrollment in a new school as required pursuant to 22 Pa. Code
§ 11.11(b); facilitating access to a full range of school programs; advocating for the child
in school discipline matters; ensuring meaningful transition planning as required by 42
Pa.C.S. § 6351 and 42 U.S.C. § 675(5)(H); and for a child eligible for special education,
ensuring access to appropriate services including transition planning beginning no later
than age fourteen. See 24 P.S. §§ 13-1371, 13-1372, 20 U.S.C. §§ 1400 et seq. See
paragraph (A) and (C).
An educational decision maker appointed pursuant to this rule who represents a
child who is also adjudicated delinquent is to review Rule 147.
A court is not to appoint an educational decision maker if there is a parent,
guardian, or other authorized person (e.g., foster parent, relative with whom the child
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lives or surrogate parent appointed under the IDEA) who is competent, willing, and
available to make decisions regarding the child’s education and who is acting in the
child’s best interest regarding all educational matters. See Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. (2004). A court should limit the
authority of a parent to make decisions regarding education only to the extent
necessary to protect the child’s interest and can reinstate the parent or change the
educational decision maker at any time.
Unless limited by the court in its appointment order, an educational decision
maker: 1) is responsible for making all decisions concerning education, including special
education, for the child; and 2) can consent to or prohibit the release of information from
the child’s school records as a parent in accordance with the Family Educational Rights
and Privacy Act, 20 U.S.C. § 1232g and 34 C.F.R. § 99.3 (1974). The educational
decision maker may be a family member, a family friend, a mentor, a foster parent, a
former foster parent, a Court Appointed Special Advocate, or, if an educational decision
maker for special education is not needed, a child welfare professional. Except as
otherwise provided by the IDEA, it is within the discretion of the court to appoint an
educational decision maker and whom to appoint. In all cases, however, an educational
decision maker appointed by the court should be familiar with a child’s educational
rights or is to agree to be trained regarding these issues.
If the child is or may be eligible for special education, an educational decision
maker is to be appointed in accordance with the standards and procedures set forth in
federal and state laws concerning special education. See IDEA, 20 U.S.C. §§ 1400,
1401(23), and 1415(b)(2); 34 C.F.R. §§ 300.30, 300.45, and 300.519. The IDEA
recognizes a court’s authority to appoint persons to make decisions concerning special
education for a child. However, such decision makers cannot be the State or
employees of any agency that is involved in the education or care of the child. 34
C.F.R. §300.519(c), (d)(2)(i).
The educational decision maker should refer to the Fostering Connections to
Success and Increasing Adoptions Act of 2008 (P.L. 110-351) and the McKinney-Vento
Homeless Assistance Act, 42 U.S.C. §§ 11431 et seq. (1989) for guidance in
educational stability. Specifically, the educational decision maker is to: a) ensure the
right to remain in the same school regardless of a change in placement when it is in the
child’s best interest; b) facilitate immediate enrollment in a new school when a school
change is in the child’s best interest; and c) ensure that school proximity is considered
in all placement changes, 42 U.S.C. §§ 675(1)(G) and 11431 et seq.
The educational decision maker is to also ensure: a) that the child receives an
appropriate education, including, as applicable, any necessary special education, early
intervention, or remedial services; 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
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necessary to support the child’s transition to [independent living pursuant to 42
Pa.C.S. § 6351] successful adulthood if the child is [sixteen] fourteen or older
pursuant to 42 Pa.C.S. § 6351(F)(8); and c) that the educational decision maker
participates in the development of a transition plan that addresses the child’s
educational needs pursuant to 42 U.S.C. § 675(5)(H) if the child will age out of care
within ninety days.
The authority of the court to appoint an educational decision maker is derived
from the broad powers of the court to issue orders that “provide for the care, protection,
safety, and wholesome mental and physical development of children.” 42 Pa.C.S. §
6301(b)(1.1). The IDEA also requires that each child who is eligible for special
education has an active parent or other identified person who can participate in the
process concerning special education. See IDEA, 20 U.S.C. §§ 1401(23) and
1415(b)(2); 34 C.F.R. §§ 300.30, 300.45, and 300.519.
Official Note: Rule 1147 adopted April 29, 2011, effective July 1, 2011. Amended
December 21, 2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1147 published with the Court’s
Order at 41 Pa.B. 2413 (May 14, 2011). Final Report explaining the amendments to
Rule 1147 published with the Court’s Order at __ Pa.B. __ (__ __, 2018).
15
[This is an entirely new rule.]
RULE 1148. EDUCATIONAL STABILITY & PLACEMENT
A. General Rule. Any order resulting in the placement of a child or a change in
placement shall address the educational stability of the child.
B. School of Origin. A child in placement shall remain in their school of origin unless
the court finds remaining in the school of origin is not in the child’s best interest. If
the court finds that it is not in the best interest of the child to remain in the school of
origin, then the court may order the child to be enrolled in another school that best
meets the child’s needs.
C. Another School. If a court orders the child to be enrolled in another school
pursuant to paragraph (B), then the child shall attend a public school unless the
court finds that a public school is not in the best interest of the child.
Comment
This rule is intended to apply at any point in a dependency proceeding when the
child is in placement, including pre-dispositional placement and post-dispositional
modification of a dependent child’s placement. This rule is intended to complement
rather than supersede the requirements of Rule 1512(D)(1)(i).
In paragraph (B), the best interest determination should be based on factors
including the appropriateness of the current educational setting considering the child’s
needs and the proximity of the school of origin relative to the placement location. This
paragraph is not intended to usurp the administrative process contemplated by the
Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. §
6311(g)(1)(E). This paragraph is intended to facilitate educational stability while the
child remains under the jurisdiction of the Juvenile Court and to codify the presumption
that a child is to remain in their school of origin absent evidence that it is not in the
child’s best interest to do so.
In paragraph (C), circumstances indicating that it may not be in the best interest
for the child to attend a public school include the security and safety of the child and
treatment needs. Paragraph (C) is intended to codify the presumption that a child is to
attend public school while in placement absent evidence demonstrating that it is not in
the best interest of the child to do so. The bundling of residential services and
educational services should not be permitted without a court order authorizing such.
A court may consider an Individualized Education Program, Service Agreement,
or administrative determination in making findings pursuant to this Rule.
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Official Note: Rule 1148 adopted December 21, 2018, effective May 1, 2019.
Committee Explanatory Reports:
Final Report explaining the provisions of Rule 1148 published with the Court’s
Order at __ Pa.B. __ (__ __, 2018).
17