Section 1242. Shelter Care Hearing

A. Informing of rights. Upon commencement of the hearing, the court shall ensure that:

1) a copy of the shelter care application is provided to the parties; and

2) all parties are informed of the right to counsel.

B. Manner of hearing.

1) Conduct. The hearing shall be conducted in an informal but orderly manner.

2) Recording. If requested, or if ordered by the court, the hearing shall be recorded by appropriate means. If not so recorded, full minutes of the hearing shall be kept.

3) Testimony and evidence. All evidence helpful in determining the questions presented, including oral or written reports, may be received by the court and relied upon to the extent of its probative value even though not competent in the hearing on the petition. The child’s attorney, the guardian, if unrepresented, and the attorney for the guardian shall be afforded an opportunity to examine and controvert written reports so received.

4) Advanced communication technology. Upon good cause shown, a court may utilize advanced communication technology pursuant to Rule 1129.

C. Findings. The court shall determine whether:

1) there are sufficient facts in support of the shelter care application;

2) the county agency has reasonably engaged in family finding;

3) custody of the child is warranted after consideration of the following factors:

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;

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;

4) a person, other than the county agency, submitting a shelter care application, is a party to the proceedings; and

5) 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.

D. Prompt hearing. The court shall conduct a hearing within seventy-two hours of taking the child into protective custody.

E. Court order. At the conclusion of the shelter care hearing, the court shall enter a written order setting forth:

1) its findings pursuant to paragraph (C);

2) any conditions placed upon any party;

3) any orders regarding family finding pursuant to Rule 1149;

4) any orders for placement or temporary care of the child;

5) 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;

6) 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

7) any orders of visitation.

Comment

Pursuant to paragraph (B)(4), it is expected that the parties be present. Only upon good cause shown should advanced communication technology be utilized.

Pursuant to paragraph (C), the court is to make a determination that the evidence presented with the shelter care application under Rule 1240 is supported by sufficient facts. After this determination, the court is to determine whether the custody of the child is warranted by requiring a finding that: 1) remaining in the home would be contrary to the health and welfare of the child; 2) reasonable efforts were made by the county agency to prevent the placement of the child; 3) the child was placed in the least restrictive placement available; and 4) if the child was taken into emergency placement without services being offered, the lack of efforts by the county agency was reasonable. Additionally, the court is to state the reasons why there are no less restrictive alternatives available.

Family finding is to be initiated prior to the shelter care hearing. See Comment to Rule 1149 as to level of reasonableness.

Pursuant to paragraph (C)(2), the court is to make a determination whether the county agency has reasonably engaged or is to engage in family finding in the case. The county agency will be required to report its diligent family finding efforts at subsequent hearings. See Rule 1149 for requirements of family finding. See also Rules 1408(2), 1512(D)(1)(h), 1514(A)(4), 1608(D)(1)(h), and 1610(D) and their Comments for the court’s findings as to the county agency’s satisfaction of the family finding requirements and Rules 1210(D), 1409(C) and 1609(D) and Comments to Rules 1408, 1409, 1512, 1514, 1515, 1608, 1609, 1610, and 1611 on the court’s orders.

Pursuant to paragraph (C)(4), 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.

See 42 Pa.C.S. § 6332.

Pursuant to paragraph (E), the court is to enter a written order. It is important that the court address any special needs of the child while the child is in shelter care. The child’s attorney or the county agency is to present any educational, health care, and disability needs to the court, if known at the time of the hearing. These needs may include a child’s educational stability, needs concerning early intervention, remedial services, health care, and disability. If the court determines a child is in need of an educational decision maker, the court is to appoint an educational decision maker pursuant to Rule 1147.

The court’s order should address the child’s educational stability, including the right to an educational decision maker. The order should address the child’s right to: 1) educational stability, including the right to: a) remain in the same school regardless of a change in placement when it is in the child’s best interest; b) immediate enrollment when a school change is in the child’s best interest; and c) have school proximity considered in all placement changes, 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 any necessary special education, early intervention, or remedial services pursuant to 24 P. S. § § 13-1371 and 13-1372, 55 Pa. Code § 3130.87, and 20 U.S.C. § 1400 et seq.; 4) the educational services necessary to support the child’s transition to independent living pursuant to 42 Pa.C.S. § 6351 if the child is sixteen or older ; and 5) 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.

When addressing the child’s health and disability needs, the court’s order should address the right of: 1) a child to receive timely and medically appropriate screenings and health care services, 55 Pa. Code § 3800.32 and 42 U.S.C. § 1396d(r); and 2) a child with disabilities to receive necessary accommodations, 42 U.S.C. § 12132, 28 C.F.R. § 35.101 et seq., Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, and implementing regulations at 45 C.F.R. § 84.1 et seq.

Pursuant to the Juvenile Act, the court has authority to order a physical or mental examination of a child and medical or surgical treatment of a minor, who is suffering from a serious physical condition or illness which requires prompt treatment in the opinion of a physician. The court may order the treatment even if the guardians have not been given notice of the pending hearing, are not available, or without good cause inform the court that they do not consent 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

Rule 1242 adopted August 21, 2006, effective February 1, 2007. Amended April 21, 2011, effective July 1, 2011. Amended April 29, 2011, effective July 1, 2011. Amended July 13, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 1242 published with the Court’s Order at 36 Pa.B. 5571 (September 2, 2006).

Final Report explaining the amendments to Rule 1242 published with the Court’s Order at 41 Pa.B. 2319 (May 7, 2011).

Final Report explaining the amendments to Rule 1242 published with the Court’s Order at 41 Pa.B. 2413 (May 14, 2011).

Final Report explaining the amendments to Rule 1242 published with the Court’s Order at 45 Pa.B. 3987 (July 25, 2015).

The provisions of this Rule 1242 amended April 21, 2011, effective July 1, 2011, 41 Pa.B. 2319; amended April 29, 2011, effective July 1, 2011, 41 Pa.B. 2413; amended July 13, 2015, effective October 1, 2015, 45 Pa.B. 3987. Immediately preceding text appears at serial pages (357347) to (357350).