Opinion
No. 530.
April 29, 2011.
ORDER
AND NOW, this 29th day of April, 2011, upon the recommendation of the Juvenile Court Procedural Rules Committee, the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3); 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 modifications to Rules 1604 and 1800 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.
RULE 1604. SUBMISSION OF REPORTS
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B. Designation by President Judge. The President Judge of each judicial district shall appoint a designee, other than a judge or party [the county agency], to receive these reports.* * *
E. Examination of Report. Pursuant to Rule 1608( [D] C ), the court shall examine this report and consider its contents as it would consider any other evidence in the case.
COMMENT * * *
Pursuant to paragraph (E), the court is to examine this report and consider it contents as it would consider any other evidence. Evidence is to be properly entered into the record before the court will consider it. Evidence submitted directly to the court is considered an ex parte communication and is strictly prohibited. See Rule 1136 on ex parte communications. Official Note:
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Amended April 29, 2011, effective July 1, 2011. Committee Explanatory Reports:
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Final Report explaining the provisions of Rule 1604 published with the Court's Order at 41 Pa.B.-(-).
CHAPTER 18 SUSPENSIONS
1800. SUSPENSIONS OF ACTS OF ASSEMBLY
This rule provides for the suspension of the following Acts of Assembly that apply to dependency proceedings only:
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11) The Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6336.1(b)(2), which provides that the foster parent or parents, preadoptive parent or relative providing care for the child has a right to submit a report to the court, is suspended only insofar as the Act is inconsistent with Rule 1604, which requires the report to be submitted to a court designee who files the report and submits it to the judge, attorneys, parties, and if appointed, a court appointed special advocate.
12) The Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6351(e)(3)(i)(B), which provides for permanency hearings within six months of each previous permanency hearing until the child is returned home or removed from the jurisdiction of the court, is suspended only insofar as the Act is inconsistent with Rule 1607, which requires permanency hearings in all cases until the child is removed from the jurisdiction of the court.
COMMENT
The authority for suspension of Acts of Assembly is granted to the Supreme Court by Article V § 10(c) of the Pennsylvania Constitution. See also Rule 1102.
Official Note:
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Amended April 29, 2011, effective July 1, 2011. Committee Explanatory Reports:
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Final Report explaining the amendments to Rule 1800 published with the Court's Order at 41 Pa.B.-(-).
INTRODUCTION
The Supreme Court of Pennsylvania has adopted the proposed changes to Rules 1604 and 1800 with this Recommendation. The changes are effective July 1, 2011.
EXPLANATORY REPORT APRIL 2011
As the Committee was reviewing a proposed local rule, the Committee decided it should clarify the intent of Rule 1604.
When drafting Rule 1604, the Committee was concerned with the court receiving ex parte communications. The Committee expected that the judge would not be receiving this report itself because it is ex parte.
The Juvenile Act was amended in 2008, adding the right for a foster parent, preadoptive parent, or relative providing care for the child to submit a report to the court. See 42 Pa.C.S. § 6336.1.
The Committee clarified the procedure on how the report was to be submitted by proposing the addition of a new Rule 1604. The Court adopted this rule in December of 2009.
In Rule 1604(D), the Committee used the term "court designee," rather than the term "court." The intent was that someone other than the judge would file this report with the clerk of courts and distribute copies to the judge, attorneys, parties, and if applicable, the court-appointed special advocate. The judge would not be the person filing the report or distributing copies.
Additionally, Rule 1604(E) provides that the court shall examine this report and consider its contents as it would consider any other evidence in the case. Generally evidence must be properly entered into the record by a party prior to the court reviewing the evidence. Then, the court would also reject, as ex parte communication, any other report sent directly to the judge.
The modified rule explicitly states in 1604(B), that the President Judge of each judicial district shall appoint a designee, other than a judge or a party , to receive these reports.
Rule 1800 suspends 42 Pa.C.S. § 6336.1 only to the extent that it conflicts with Rule 1604, in that a report may not be sent directly to the judge as an ex parte communication. It must follow the normal procedures and be submitted as evidence. The report would be considered by the court as it considers all other evidence.