Section 1409. Adjudication of Dependency and Court Order

A. Adjudicating the child dependent. Once the court has made its findings under Rule 1408, the court shall enter an order whether the child is dependent.

1) Dependency. If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed to a dispositional hearing under Rule 1512.

2) No dependency. If the court finds the child not to be dependent or the court finds a parent ready, willing, and able to provide proper parental care or control, the court shall:

a) dismiss the petition;

b) order the child to be discharged from custody and any restrictions ordered in the proceedings; and

c) enter an order identifying individual(s) who will have the legal and physical custody until such order is modified by further order of the court.

B. Timing.

1) Child in custody. If a child is removed from the home, the court shall enter an adjudication of dependency within seven days of the adjudicatory hearing and enter its findings pursuant to Rule 1408.

2) Child not in custody. If a child is not removed from the home and if the court fails to enter an order of dependency, the court shall hold a status hearing every thirty days.

C. Court order. The court shall include the following in its court order:

1) A statement pursuant to paragraph (A):

a) as to whether the court finds the child to be dependent from clear and convincing evidence;

b) including the specific factual findings that form the bases of the court’s decision;

c) including any legal determinations made; and

2) Any orders directing the removal of a child from the home or change in the current residential status, including:

a) orders as to placement; or

b) visitation; or

c) change in custody; and

3) Any orders as to any aids in disposition that may assist in the preparation of the dispositional hearing, including orders regarding family finding.

Comment

Before the court can find a child to be dependent, there must be clear and convincing evidence in support of the petition. The burden of proof is on the petitioner. The court’s inquiry is to be comprehensive and its findings are to be supported by specific findings of fact and a full discussion of the evidence. In re LaRue, 244 Pa. Super. 218, 366 A.2d 1271 (1976). See also In re Frank W.D., Jr., 315 Pa. Super. 510, 462 A.2d 708 (1983); In re Clouse, 244 Pa. Super. 396, 368 A.2d 780 ( 1976). The evidence must support that the child is dependent. In the Matter of DeSavage, 241 Pa. Super. 174, 360 A.2d 237 (1976). The court is not free to apply the best interest of the child standard as the requirements of the Juvenile Act, 42 Pa.C.S. § 6341(c), require clear and convincing evidence that the child is dependent is the proper standard. In re Haynes, 326 Pa. Super. 311, 473 A.2d 1365 (1983). A child, whose non-custodial parent is ready, willing, and able to provide adequate care for the child, cannot be found dependent on the basis of lacking proper parental care and control. In re M.L., 562 Pa. 646, 757 A.2d 849 (2000). A trial court has the authority to transfer custody or modify custody to the child’s non-custodial parent without a finding of dependency if sufficient evidence of dependency would have existed but for the availability of the non-custodial parent. In re Justin S., 375 Pa. Super. 88, 543 A.2d 1192 (1988).

The court is to specify which allegations in the petition are the bases for the finding of dependency pursuant to Rule 1408. The court is to make an adjudication of dependency based upon the allegations in the petition, not on alternative grounds. Due process and fundamental fairness require adequate notice of the allegations to afford a reasonable opportunity to prepare a defense. In re R.M., 567 Pa. 646, 790 A.2d 300 (2002).

Under paragraph (B), if a child is removed from the home, a finding of dependency is to be made within seven days.

Under paragraph (C)(3), aids in disposition may include, but are not limited to, any services, investigations, evaluations, studies, treatment plans, and any other appropriate reports that may aid the court in making its determination at the dispositional hearing. See 42 Pa.C.S. § 6339 for orders of a social study or physical and mental examinations and treatment.

See also 42 Pa.C.S. § § 6341 & 6302.

Pursuant to paragraph (C)(3), when making its determination for reasonable efforts made by the county agency, the court is to consider the extent to which the county agency has fulfilled its obligation pursuant to Rule 1149 regarding family finding. See also Rules 1242(C)(2) & (3)(b) & (c) and 1330(B)(6) and Comments to Rules 1242, 1330, 1515, 1608, 1609, 1610, and 1611 for reasonable efforts determinations.

If the requirements of Rule 1149 regarding family finding have not been met, the court is to make necessary orders to ensure compliance by enforcing this legislative mandate. See 62 P. S. § 1301 et seq. See also Rules 1242(E)(3) and 1609(D) and Comments to Rules 1242, 1408, 1512, 1514, 1515, 1608, 1609, 1610, and 1611.

Official Note

Rule 1409 adopted August 21, 2006, effective February 1, 2007. Amended July 13, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 1409 published with the Court’s Order at 36 Pa.B. 5571 (September 2, 2006).

Final Report explaining the amendments to Rule 1409 published with the Court’s Order at 45 Pa.B. 3987 (July 25, 2015).

The provisions of this Rule 1409 amended July 13, 2015, effective October 1, 2015, 45 Pa.B. 3987. Immediately preceding text appears at serial pages (357352) and (326097) to (326098).