Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Cons. Stat. Tit. 23, § 6303The term ‘child abuse’ shall mean intentionally, knowingly, or recklessly doing any of the following:

• Causing bodily injury to a child through any recent act or failure to act
• Fabricating, feigning, or intentionally exaggerating or inducing a medical symptom or disease that results in a potentially harmful medical evaluation or treatment to the child through any recent act
• Causing sexual abuse or exploitation of a child through any act or failure to act
• Creating a reasonable likelihood of bodily injury to a child through any recent act or failure to act
• Creating a likelihood of sexual abuse or exploitation of a child through any recent act or failure to act
• Causing serious physical neglect of a child
• Engaging in any of the following recent acts:
  • Kicking, biting, throwing, burning, stabbing, or cutting a child in a manner that endangers the child
  • Unreasonably restraining or confining a child, based on consideration of the method, location, or the duration of the restraint or confinement
  • Forcefully shaking a child younger than age 1
  • Forcefully slapping or otherwise striking a child younger than age 1
  • Interfering with the breathing of a child
  • Causing a child to be present at a location while a violation of 18 Pa.C.S. § 7508.2 (relating to operation of methamphetamine laboratory) is occurring, provided that the violation is being investigated by law enforcement
  • Leaving a child unsupervised with an individual, other than the child’s parent, who the actor knows or reasonably should have known:
    • Is required to register as a Tier II or Tier III sexual offender, when the victim of the sexual offense was younger than age 18 when the crime was committed
    • Has been determined to be a sexually violent predator
    • Has been determined to be a sexually violent delinquent child

Neglect

Citation: Cons. Stat. Tit. 23, § 6303‘Serious physical neglect’ means any of the following when committed by a perpetrator that endangers a child’s life or health, threatens a child’s well-being, causes bodily injury, or impairs a child’s health, development, or functioning:

• A repeated, prolonged, or unconscionable egregious failure to supervise a child in a manner that is appropriate considering the child’s developmental age and abilities
• The failure to provide a child with adequate essentials of life, including food, shelter, or medical care

Sexual Abuse/Exploitation

Citation: Cons. Stat. Tit. 23, § 6303‘Sexual abuse or exploitation’ means any of the following:

• The employment, use, persuasion, inducement, enticement, or coercion of a child to engage in or assist another individual to engage in sexually explicit conduct, including, but not limited to, the following:
  • Looking at the sexual or other intimate parts of a child or another individual for the purpose of arousing or gratifying sexual desire in any individual
  • Participating in sexually explicit conversation either in person, by telephone, by computer, or by a computer-aided device for the purpose of sexual stimulation or gratification of any individual
  • Actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of any individual
  • Actual or simulated sexual activity for the purpose of producing visual depiction, including photographing, videotaping, computer depicting, or filming
• Any of the following offenses committed against a child:
  • Rape, as defined in 18 Pa.C.S. § 3121
  • Statutory sexual assault, as defined in 18 Pa.C.S. § 3122.1
  • Involuntary deviate sexual intercourse, as defined in 18 Pa.C.S. § 3123
  • Sexual assault, as defined in 18 Pa.C.S. § 3124.1
  • Institutional sexual assault, as defined in 18 Pa.C.S. § 3124.2
  • Aggravated indecent assault, as defined in 18 Pa.C.S. § 3125
  • Indecent assault, as defined in 18 Pa.C.S. § 3126
  • Indecent exposure, as defined in 18 Pa.C.S. § 3127
  • Incest, as defined in 18 Pa.C.S. § 4302
  • Prostitution, as defined in 18 Pa.C.S. § 5902
  • Sexual abuse of children, as defined in 18 Pa.C.S. § 6312
  • Unlawful contact with a minor, as defined in 18 Pa.C.S. § 6318
  • Sexual exploitation of children, as defined in 18 Pa.C.S. § 6320

Emotional Abuse

Citation: Cons. Stat. Tit. 23, § 6303The term ‘child abuse’ includes causing or substantially contributing to serious mental injury to a child through any act or failure to act or a series of such acts or failures to act.

‘Serious mental injury’ means a psychological condition, as diagnosed by a physician or licensed psychologist, including the refusal of appropriate treatment, that:

• Renders a child chronically and severely anxious, agitated, depressed, socially withdrawn, psychotic, or in reasonable fear that the child’s life or safety is threatened
• Seriously interferes with a child’s ability to accomplish age-appropriate developmental and social tasks

Abandonment

This issue is not addressed in the statutes reviewed.

Standards for Reporting

Citation: Cons. Stat. Tit. 23, § 6311
A report is required when a mandatory reporter has reasonable cause to suspect that a child is a victim of child abuse.

Persons Responsible for the Child

Citation: Cons. Stat. Tit. 23, § 6303‘Perpetrator’ means a person who has committed child abuse as defined in this section. The term includes only the following:

• A parent of the child
• A spouse or former spouse of the child’s parent
• A paramour or former paramour of the child’s parent
• A person age 14 or older and responsible for the child’s welfare
• An individual who is age 14 or older who resides in the same home as the child
• An individual age 18 or older who does not reside in the same home as the child but is related within the third degree of consanguinity or affinity by birth or adoption to the child

Only the following may be considered a perpetrator for failing to act, as provided in this section:

• A parent of the child
• A spouse or former spouse of the child’s parent
• A paramour or former paramour of the child’s parent
• A person age 18 or older who is responsible for the child’s welfare
• A person age 18 or older who resides in the same home as the child

A ‘person responsible for the child’s welfare’ is a person who provides permanent or temporary care; supervision; mental health diagnosis or treatment; training; or control of a child in lieu of parental care, supervision, and control.

Exceptions

Citation: Cons. Stat. Tit. 23, §§ 6303; 6304The term ‘sexual abuse’ does not include consensual activities between a child who is age 14 or older and another person who is age 14 or older and whose age is within 4 years of the child’s age.

No child shall be deemed to be abused based on injuries that result solely from environmental factors, such as inadequate housing, clothing, and medical care, which are beyond the control of the parent.

If, upon investigation, the county agency determines that a child has not been provided needed medical care because of sincerely held religious beliefs of the child’s parents, which beliefs are consistent with those of a bona fide religion, the child shall not be deemed to be physically or mentally abused. In such cases, the county agency shall closely monitor the child and the child’s family and shall seek court-ordered medical intervention when the lack of medical care threatens the child’s life or long-term health. The family shall be referred for general protective services, if appropriate. This subsection shall not apply if the failure to provide needed medical care causes the death of the child.

The use of reasonable force on or against a child by the child’s own parent or person responsible for the child’s welfare shall not be considered child abuse if any of the following conditions apply:

• The use of reasonable force constitutes incidental, minor, or reasonable physical contact with the child that are designed to maintain order and control.
• The use of reasonable force is necessary:
  • To quell a disturbance or remove the child from the scene of a disturbance that threatens physical injury to persons or damage to property
  • To prevent the child from self-inflicted physical harm
  • For self-defense or the defense of another individual
  • To obtain possession of weapons, dangerous objects, or controlled substances or paraphernalia that are on or within the control of the child

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Cons. Stat. Tit. 23, § 6102‘Abuse’ means the occurrence of one or more of the following acts between family or household members, sexual or intimate partners, or persons who share biological parenthood:

• Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault, or incest with or without a deadly weapon
• Placing another in reasonable fear of imminent serious bodily injury
• The infliction of false imprisonment pursuant to title 18, § 2903
• Physically or sexually abusing minor children, including such terms as defined in chapter 63 (relating to child protective services)
• Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances that place the person in reasonable fear of bodily injury

The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under title 18 (relating to crimes and offenses).

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation: Cons. Stat. Tit. 18, § 2711A police officer shall have the same right of arrest without a warrant as in a felony whenever he or she has probable cause to believe the defendant has violated §§ 2504 (relating to involuntary manslaughter); 2701 (relating to simple assault); 2702(a)(3), (4) and (5) (relating to aggravated assault); 2705 (relating to recklessly endangering another person); 2706 (relating to terroristic threats); or 2709.1 (relating to stalking) against a family or household member, although the offense did not take place in the presence of the police officer. A police officer may not arrest a person pursuant to this section without first observing recent physical injury to the victim or other corroborative evidence. For the purposes of this subsection, the term ‘family or household member’ has the meaning given that term in title 23, § 6102.

Persons Included in the Definition

Citation: Cons. Stat. Tit. 23, § 6102‘Family or household members’ means:

• Spouses or persons who have been spouses
• Persons living as spouses or who lived as spouses
• Parents and children
• Other persons related by consanguinity or affinity
• Current or former sexual or intimate partners
• Persons who share biological parenthood

Current Through June 2013

Confidentiality of Records

Citation: Cons. Stat. Tit. 23, § 6339Except as otherwise provided by law, reports made pursuant to this chapter, including, but not limited to, report summaries of child abuse and neglect written reports, as well as any other information obtained, reports written or photographs or x-rays taken concerning alleged instances of child abuse in the possession of the Department of Public Welfare or a county agency shall be confidential.

Persons or Entities Allowed Access to Records

Citation: Cons. Stat. Tit. 23, § 6340Records shall only be made available to the following:

• An authorized official of a county agency, a Federal agency that has a need for the information, or of an agency of another State that performs protective services
• Multidisciplinary team members assigned to the case
• A physician examining or treating a child when the physician suspects the child of being an abused child
• A guardian ad litem or court designated advocate for the child
• An official or agent of the department conducting a performance audit
• A court of competent jurisdiction
• A court of common pleas in connection with any matter involving custody of a child
• A standing committee of the General Assembly charged with legislative oversight
• The attorney general or a district attorney
• Federal auditors if required for Federal financial participation in funding of agencies
• Law enforcement officials of any jurisdiction, as long as the information is relevant to an investigation
• Designated county officials
• A mandated reporter who made a report of abuse involving the subject child
• A prospective adoptive parent when considering adopting an abused child in the custody of a county agency
• Appropriate officials of another county or State regarding an investigation related to child abuse or protective services when a family has moved to that county or State
• A subject of a report
• Members of a citizen review panel
• A member of a child fatality or near fatality review team

When Public Disclosure of Records is Allowed

Citation: Cons. Stat. Tit. 23, § 6343The department shall conduct a child fatality or near fatality review immediately upon receipt of a report that a child died or nearly died as a result of suspected child abuse.

Prior to completing its report, the department may release the following information to the public concerning a child who died or nearly died as a result of suspected or substantiated child abuse:

• The identity of the child
• If the child was in the custody of a public or private agency, the identity of the agency
• The identity of the public or private agency that provided services to the child and the child’s family in the child’s home prior to the child’s death or near fatality
• A description of services provided
• The identity of the county agency that convened a child fatality or near fatality review team with respect to the child

Upon completion of the review and report, the department’s report shall be made available to the county agency, the child fatality or near fatality review team, designated county officials, and, upon request, to other individuals to whom confidential reports may be released.

The report shall be made available to the public, but identifying information shall be removed from the contents of the report except for disclosure of the information listed above. The report shall not be released to the public if the district attorney certifies that release of the report may compromise a pending criminal investigation or proceeding.

Use of Records for Employment Screening

Citation: Cons. Stat. Tit. 23, § 6344This section applies to all prospective employees of child care services, prospective foster parents, prospective adoptive parents, prospective self-employed family daycare providers, and other persons seeking to provide child care services that involve direct contact with children.

Administrators of child care services shall require applicants to submit with their applications a certification from the department as to whether the applicant is named in the central register as the perpetrator of a founded report of child abuse, indicated report of child abuse, founded report for school employee, or indicated report for school employee.

In the course of investigating and approving an individual as a prospective foster or adoptive parent, the agency shall require the individual and any person over age 18 residing in the individual’s home to submit a certification obtained within the previous 1-year period from the statewide central registry, or its equivalent in each State in which the person has resided within the previous 5-year period, as to whether the person is named as a perpetrator of child abuse.

Self-employed family daycare providers who apply for a certificate of registration with the department shall submit with their registration application certification from the department as to whether the applicant is named in the central register as the perpetrator of a founded report of child abuse.

Current Through March 2015

Citation: Cons. Stat. Ch. 23, § 6318

A person, hospital, institution, school, facility, agency or agency employee acting in good faith shall have immunity from civil and criminal liability that might otherwise result from any of the following:

• Making a report of suspected child abuse or making a referral for general protective services, regardless of whether the report is required to be made under this chapter
• Cooperating or consulting with an investigation under this chapter, including providing information to a child fatality or near-fatality review team
• Testifying in a proceeding arising out of an instance of suspected child abuse or general protective services
• Engaging in any action authorized under § 6314 (relating to photographs, medical tests, and x-rays of a child subject to report), § 6315 (relating to taking child into protective custody), § 6316 (relating to admission to private and public hospitals), or § 6317 (relating to mandatory reporting and postmortem investigation of deaths)

An official or employee of the department or county agency who refers a report of suspected child abuse for general protective services to law enforcement authorities or provides services as authorized by this chapter shall have immunity from civil and criminal liability that might otherwise result from the action.

For the purpose of any civil or criminal proceeding, the good faith of a person required to report pursuant to § 6311 (relating to persons required to report suspected child abuse) and of any person required to make a referral to law enforcement officers under this chapter shall be presumed.

Current Through February 2013

Individual Responsibility to Report

Citation: Cons. Stat. Tit. 23, §§ 6311; 6313A mandated reporter who has reasonable cause to suspect that a child is an abused or neglected child shall make a report to the Department of Public Welfare.

An oral report shall be made immediately, to be followed by a written report within 48 hours.

Written reports shall be made to the appropriate county agency in a manner and on forms the department prescribes by regulation.

Content of Reports

Citation: Cons. Stat. Tit. 23, § 6313The written reports shall include the following information if available:

• The names and addresses of the child and the child’s parents or other persons responsible for the care of the child, if known
• Where the suspected abuse occurred
• The age and sex of subjects of the report
• The nature and extent of the suspected abuse, including any evidence of prior abuse to the child or siblings of the child
• The name and relationship of the person responsible for causing the suspected abuse, if known, and any evidence of prior abuse by that person
• Family composition
• The source of the report
• The name and contact information of the person making the report
• Any actions taken by the source
• Any other information that the department may require by regulation

Reporting Suspicious Deaths

Citation: Cons. Stat. Tit. 23, § 6317A mandated reporter who has reasonable cause to suspect that a child has died as a result of abuse or neglect shall report that suspicion to the appropriate coroner. The coroner shall accept the report for investigation and shall report his finding to the police, the district attorney, the appropriate county agency and, if the report is made by a hospital, the hospital.

Reporting Substance-Exposed Infants

Citation:This issue is not addressed in the statutes reviewed.

Agency Receiving the Reports

Citation: Cons. Stat. Tit. 23, § 6332The department shall establish a single statewide toll-free telephone number that all persons, whether mandated by law or not, may use to report cases of suspected child abuse. A county agency shall use the toll-free telephone number for determining the existence of prior founded or indicated reports of child abuse in the Statewide central register or reports under investigation in the pending complaint file.

Initial Screening Decisions

Citation: Cons. Stat. Tit. 23, § 6334Upon receipt of a complaint of suspected child abuse, the department shall immediately transmit orally to the appropriate county agency notice that the complaint of suspected child abuse has been received and the substance of the complaint. If the central register or the pending complaint file contains information indicating a prior report or a current investigation concerning a subject of the report, the department shall immediately notify the appropriate county agency of this fact. The appropriate county agency shall mean the agency in the county where the suspected child abuse occurred.

If the complaint does not suggest suspected child abuse but does suggest a need for social services or other services or investigation, the department shall transmit the information to the county agency or other public agency for appropriate action. The information shall not be considered a child abuse report unless the agency to which the information was referred has reasonable cause to suspect after investigation that abuse occurred. If the agency has reasonable cause to suspect that abuse occurred, the agency shall notify the department, and the initial complaint shall be considered to have been a child abuse report.

Agency Conducting the Assessment/Investigation

Citation: Cons. Stat. Tit. 23, § 6368Upon receipt of each report of suspected child abuse, the county agency shall immediately commence an appropriate investigation.

If the complaint of suspected abuse is determined to be one that cannot be investigated under this chapter because the person accused of the abuse is not a parent of a child, a person responsible for the welfare of a child, an individual residing in the same home as a child, or a paramour of a child’s parent, but does suggest the need for investigation, the county agency shall immediately transmit the information to the appropriate authorities, including the district attorney, the district attorney’s designee, or other law enforcement official for investigation.

Assessment/Investigation Procedures

Citation: Cons. Stat. Tit. 23, § 6368The investigation shall include a determination of the risk of harm to the child or children if they continue to remain in the existing home environment, as well as a determination of the nature, extent, and cause of any condition enumerated in the report, any action necessary to provide for the safety of the child, and the taking of photographic identification of the child to be maintained with the file. During the investigation, the county agency shall provide or arrange for services necessary to protect the child while the agency is making a determination. If the investigation indicates serious physical injury, a medical examination shall be performed on the subject child by a certified medical practitioner. Where there is reasonable cause to suspect there is a history of prior or current abuse, the medical practitioner has the authority to arrange for further medical tests or the county agency has the authority to request further medical tests.

Prior to interviewing a subject of the report, the county agency shall orally notify the subject who is about to be interviewed of the existence of the report, the subject’s right to counsel and other basic rights.

Timeframes for Completing Investigations

Citation: Cons. Stat. Tit. 23, § 6368Upon receipt of each report of suspected child abuse, the county agency shall immediately commence an appropriate investigation and see the child immediately if emergency protective custody is required or has been or shall be taken or if it cannot be determined from the report whether emergency protective custody is needed. Otherwise, the county agency shall commence an appropriate investigation and see the child within 24 hours of receipt of the report.

The investigation by the county agency to determine whether the report is founded, indicated, or unfounded and whether to accept the family for service shall be completed within 60 days in all cases.

Classification of Reports

Citation: Cons. Stat. Tit. 23, § 6303Child abuse reports may be classified as follows:

• Founded report: If there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused, including the entry of a plea of guilty or nolo contendere or a finding of guilt to a criminal charge involving the same factual circumstances involved in the allegation of child abuse
• Indicated report: If an investigation by the county agency or the department determines that substantial evidence of the alleged abuse exists based on any of the following:
  • Available medical evidence
  • The child protective service investigation
  • An admission of the acts of abuse by the perpetrator
• Unfounded report: Any report that is not a founded or indicated report

Current Through August 2015

Professionals Required to Report

Citation: Cons. Stat. Tit. 23, § 6311The following adults are required to report:

• Persons licensed or certified to practice in any health-related field
• Medical examiners, coroners, or funeral directors
• Employees of licensed health-care facilities who are engaged in the admission, examination, care, or treatment of individuals
• School employees
• Employees of a child care service or public library
• A clergyman, priest, rabbi, minister, Christian Science practitioner, religious healer, or spiritual leader of any regularly established church or other religious organization
• Any person, paid or unpaid, who, on the basis of the person’s role in a program, activity, or service, is a person responsible for the child’s welfare or has direct contact with children
• Employees of a social services agency
• A peace officer or law enforcement official
• An emergency medical services provider
• An individual supervised or managed by a person listed above who has direct contact with children
• An independent contractor
• An attorney affiliated with an agency, institution, or other entity, including a school or established religious organization that is responsible for the care, supervision, guidance, or control of children
• A foster parent
• An adult family member who is a person responsible for the child’s welfare and provides services to a child in a family living home, community home for individuals with an intellectual disability, or licensed host home for children

A ‘school employee’ is an individual who is employed by a school or who provides an activity or service sponsored by a school. The term does not apply to administrative personnel unless that person has direct contact with children. A school is a facility providing elementary, secondary, or postsecondary educational services, including public and nonpublic schools, vocational-technical schools, and institutions of higher education.

Reporting by Other Persons

Citation: Cons. Stat. Tit. 23, § 6312Any person may make an oral or written report of suspected child abuse, which may be submitted electronically, if that person has reasonable cause to suspect that a child is a victim of child abuse.

Institutional Responsibility to Report

Citation: Cons. Stat. Tit. 23, § 6311Whenever a person is required to report in the capacity as a member of the staff of a medical or other public or private institution, school, facility, or agency, that person shall report immediately in accordance with § 6313 and shall immediately thereafter notify the person in charge of the institution, school, facility, or agency, or the designated agent of the person in charge. Upon notification, the person in charge or the designated agent, if any, shall facilitate the cooperation of the institution, school, facility, or agency with the investigation of the report. Any intimidation, retaliation, or obstruction in the investigation of the report is subject to the provisions of title 18, § 4958 (relating to intimidation, retaliation, or obstruction in child abuse cases). This chapter does not require more than one report from any such institution, school, facility, or agency.

Standards for Making a Report

Citation: Cons. Stat. Tit. 23, § 6311A mandated reporter shall make a report of suspected child abuse if he or she has reasonable cause to suspect that a child is a victim of child abuse under any of the following circumstances:

• The mandated reporter comes into contact with the child in the course of employment, occupation, and practice of a profession or through a regularly scheduled program, activity, or service.
• The mandated reporter is directly responsible for the care, supervision, guidance, or training of the child, or is affiliated with an agency, institution, organization, school, regularly established church or religious organization, or other entity that is directly responsible for the care, supervision, guidance, or training of the child.
• A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse.
• An individual age 14 or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse.

Nothing in this section shall require a child to come before the mandated reporter in order for the mandated reporter to make a report of suspected child abuse. Nothing in this section shall require the mandated reporter to identify the person responsible for the child abuse to make a report of suspected child abuse.

Privileged Communications

Citation: Cons. Stat. Tit. 23, § 6311.1The privileged communications between a mandated reporter and a patient or client of the mandated reporter shall not:

• Apply to a situation involving child abuse
• Relieve the mandated reporter of the duty to make a report of suspected child abuse

The following protections shall apply:

• Confidential communications made to a member of the clergy are protected under title 42, § 5943 (relating to confidential communications to clergymen).
• Confidential communications made to an attorney are protected so long as they are within the scope of title 42, § 5916 (relating to confidential communications to attorney) and § 5928 (relating to confidential communications to attorney), the attorney work product doctrine, or the rules of professional conduct for attorneys.

Inclusion of Reporter’s Name in Report

Citation: Cons. Stat. Tit. 23, § 6313A written report of suspected child abuse, which may be submitted electronically, shall include the name, telephone number, and email address of the person making the report.

Disclosure of Reporter Identity

Citation: Cons. Stat. Tit. 23, § 6340Upon a written request, a subject of a report may receive a copy of all information, except for the identity of the person who made the report.

Except for reports released to law enforcement officials and the district attorney’s office, and in response to a law enforcement official investigating allegations of false reports under title 18, § 4906.1 (relating to false reports of child abuse), the release of data that would identify the person who made a report of suspected child abuse or who cooperated in a subsequent investigation is prohibited. Law enforcement officials shall treat all reporting sources as confidential informants.

Current Through April 2015

Citation: Cons. Stat. Tit. 23, § 6303(b.1)(8)(vi)The term ‘child abuse’ includes intentionally, knowingly, or recklessly causing a child to be present at a location while a violation of Cons. Stat. tit. 18, § 7508.2 (relating to operation of a methamphetamine laboratory) is occurring, provided that the violation is being investigated by law enforcement.

Citation: Cons. Stat. Tit. 23, § 6386A health-care provider shall immediately make a report or cause a report to be made to the appropriate county agency if the provider is involved in the delivery or care of a child under 1 year of age who is born and identified as being affected by any of the following:

• Illegal substance abuse by the child’s mother
• Withdrawal symptoms resulting from prenatal drug exposure
• A fetal alcohol spectrum disorder

The county agency shall perform a safety assessment or risk assessment, or both, for the child and determine whether child protective services or general protective services are warranted.

Citation: Pa. Stat. Tit. 35, § 780-113(a)(38), (p)The following acts and the causing thereof within the Commonwealth are hereby prohibited: The unlawful manufacture of methamphetamine or phencyclidine or their salts, isomers, and salts of isomers, whenever the existence of such salts, isomers, or salts of isomers is possible within the specific chemical designation:

• In a structure where any child under age 18 is present
• Where the manufacturing of methamphetamine or phencyclidine causes any child under age 18 to suffer bodily injury

Any person who violates the first subsection above is guilty of a felony of the third degree and upon conviction thereof shall be sentenced to not more than 7 years in prison and a fine of not more than $25,000, or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal activity.

Any person who violates the second subsection above is guilty of a felony of the second degree and upon conviction thereof shall be sentenced to not more than 10 years in prison and a fine of not more than $50,000, or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal activity.

Current Through August 2014

Making The Appointment

Citation: Cons. Stat. Tit. 42, §§ 6311; 6342When a proceeding has been initiated alleging that the child is a dependent child, the court shall appoint a guardian ad litem (GAL) to represent the legal interests and the best interests of the child.

The court may appoint or discharge a court-appointed special advocate (CASA) at any time during a proceeding or investigation regarding dependency.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Cons. Stat. Tit. 42, §§ 6302:01; 6342A CASA is an individual appointed by the court to participate as an advocate for a child who is dependent or alleged to be dependent. Following appointment by the court, the CASA shall:

• Have full access to and review all records, including child protective services records, relating to the child and other information, unless otherwise restricted by the court
• Interview the child and other appropriate persons as necessary to develop his or her recommendations
• Receive reasonable prior notice of all hearings, staff meetings, investigations, or other proceedings relating to the child
• Receive reasonable prior notice of the movement of the child from one placement to another placement, the return of a child to the home, the removal of a child from the home, or any action that materially affects the treatment of the child
• Submit written reports to the court to assist the court in determining the disposition best suited to the health, safety, and welfare of the child
• Submit copies of all written reports and recommendations to all parties and any attorney of a party

Qualifications/Training

Citation: Cons. Stat. Tit. 42, §§ 6311; 6342The GAL must be an attorney-at-law.

Prior to appointment, a CASA shall:

• Be age 21 or older
• Successfully pass screening requirements, including criminal history and child abuse background checks
• Successfully complete the training requirements established under § 6342(f) and by the court of common pleas of the county where the CASA will serve

The Juvenile Court Judges’ Commission shall develop standards governing the qualifications and training of CASAs.

Specific Duties

Citation: Cons. Stat. Tit. 42, § 6311The GAL shall be charged with representation of the legal interests and the best interests of the child at every stage of the proceedings and shall do all of the following:

• Meet with the child as soon as possible following appointment and on a regular basis thereafter in a manner appropriate to the child’s age and maturity
• On a timely basis, be given access to relevant court and county agency records, reports of examination of the parents or other custodian of the child, and medical, psychological, and school records
• Participate in all proceedings and administrative hearings and reviews to the degree necessary to adequately represent the child
• Conduct such further investigation necessary to ascertain the facts
• Interview potential witnesses, including the child’s parents, caregivers, and foster parents; examine and cross-examine witnesses; and present witnesses and evidence necessary to protect the best interests of the child
• At the earliest possible date, be advised by the county agency having legal custody of the child of:
  • Any plan to relocate the child or modify custody or visitation arrangements, and the reasons why, prior to the relocation or change in custody or visitation
  • Any proceeding, investigation, or hearing directly affecting the child
• Make specific recommendations to the court relating to the appropriateness and safety of the child’s placement and services necessary to address the child’s needs and safety
• Explain the proceedings to the child as appropriate to the child’s age and mental and emotional condition
• Advise the court of the child’s wishes to the extent that they can be ascertained and present to the court whatever evidence exists to support the child’s wishes

A difference between the child’s wishes and the GAL’s recommendations shall not be considered a conflict of interest for the GAL.

How the Representative Is Compensated

Citation:This issue is not addressed in the statutes reviewed.

Current Through April 2014

When Case Plans Are Required

Citation: Admin. Code Tit. 55, § 3130.61Within 60 days of accepting a family for service, a written family service plan shall be developed for each family receiving services through the county agency.

Who May Participate in the Case Planning Process

Citation: Admin. Code Tit. 55, § 3130.61The county agency shall prepare the family service plan. The agency shall provide family members, including the child, his or her representatives, and service providers, the opportunity to participate in the development and amendment of the service plan if the opportunity does not jeopardize the child’s safety. The method by which these opportunities are provided shall be recorded in the plan.

Contents of a Case Plan

Admin. Code Tit. 55, §§ 3130.61; 3130.67The service plan shall be a discrete part of the family case record and shall include:

• Identifying information pertaining to both the child and other family members
• A description of the specific circumstances under which the case was accepted
• The service objectives for the family, identifying changes needed to protect children in the family in need of protection from abuse, neglect, and exploitation and to prevent their placement
• The services to be provided to achieve the objectives of the plan
• The actions to be taken by the parents, children, the county agency, or other agencies, and the dates when these actions will be completed
• The results of family service plan reviews and placement reviews

If the child must be placed out of the home, the service plan also shall include:

• A description of the circumstances that make placement necessary
• To the extent available and accessible, health and educational information on the child that includes:
  • The names and addresses of the child’s health and educational providers
  • The child’s school records and grade-level performance
  • Assurances that the child’s placement in foster care takes into account proximity to the school in which the child is enrolled at the time of placement
  • A record of the child’s immunizations and medications
  • The child’s known medical problems, including the identification of known physical, mental, or emotional disabilities
  • Other relevant health and educational information concerning the child determined to be appropriate by the county agency
• An identification of the type of home or facility in which the child will be placed and the appropriateness of the placement, including how the placement setting is the least restrictive, most familylike setting available for the child, consistent with the best interests and special needs of the child
• A description of the service objectives that shall be achieved by the parents or child prior to reunification
• For every child age 16 or older, the appropriateness of providing programs and services to help the child prepare for transition from foster care to independent living
• An identification of services to be provided to the family, the child, and, if applicable, the foster family to achieve the goal for the child in placement and to ensure that the child receives proper care
• An identification of the steps the county agency shall take to ensure that the service plan is implemented, including a schedule for a review of the status of each child
• The schedule for visits between the child and parents, including frequency, location, and participants
• A description of the services actually provided to the child and the parents to implement the plan and achieve the goal established for the child in placement
• The results of placement reviews

Current Through November 2012

This issue is not addressed in the statutes reviewed.

Current Through January 2016

Schedule of Hearings

Citation: Cons. Stat. Tit. 42, § 6351; Admin. Code Tit. 55, § 3130.71The court shall conduct a permanency hearing:

• Within 6 months of the child’s removal from the home and every 6 months thereafter
• Within 30 days of a finding that reasonable efforts to reunify are not required

If the court resumes jurisdiction of the child pursuant to an agreement to extend foster care after age 18, permanency hearings shall be scheduled in accordance with applicable law until court jurisdiction is terminated, but no later than when the child reaches age 21.

In regulation: The county agency shall ensure that the status of a child in placement under its case management responsibility is reviewed periodically but no less frequently than once every 6 months. The child’s first review shall occur no later than 6 months from the date of placement. Subsequent periodic reviews shall be held no later than 6 months from the date of the previous periodic review.

Persons Entitled to Attend Hearings

Citation: Cons. Stat. Tit. 42, §§ 6310; 6336.1(a)The court may order a parent, guardian, or custodian of a child to be present at and to bring the child to any proceeding under this chapter.

Notice of the hearing shall be provided to:

• The child’s foster parent
• Any preadoptive parent
• A relative providing care for the child

The court shall provide the child’s foster parent, preadoptive parent, or relative providing care for the child the right to be heard at any hearing under this chapter. Unless a foster parent, preadoptive parent, or relative providing care for a child has been awarded legal custody, nothing in this section shall give the foster parent, preadoptive parent, or relative providing care for the child legal standing in the matter being heard by the court.

Determinations Made at Hearings

Citation: Cons. Stat. Tit. 42, § 6351At each permanency hearing, a court shall determine all of the following:

• The continuing necessity for and appropriateness of the placement
• The appropriateness and extent of compliance with the permanency plan
• The extent of progress made toward alleviating the circumstances that necessitated the original placement
• The appropriateness and feasibility of the current placement goal for the child
• The likely date by which the placement goal for the child might be achieved
• Whether reasonable efforts were made to finalize the permanency plan
• Whether the child is safe
• If the child has been placed outside the State, whether the placement continues to be best suited to the safety and welfare of the child
• The services needed to assist a child who is age 14 or older to make the transition to successful adulthood
• Whether the child who is between age 18 and 21 has requested that the court continue jurisdiction
• Whether a transition plan has been prepared in accordance with 42 U.S.C. § 675(5)(h)
• If the child has been in placement for at least 15 of the last 22 months or aggravated circumstances exist, whether a petition to terminate parental rights has been filed
• If a sibling of a child has been removed from the home and is in a different placement setting, whether reasonable efforts have been made to place the child and his or her sibling together or whether such joint placement is contrary to the safety or well-being of the child or sibling
• If the child has a sibling, whether visitation of the child with that sibling is occurring no less than twice a month, unless a finding is made that visitation is contrary to the safety or well-being of the child or sibling
• If the child has been placed with a caregiver, whether the child is being provided with regular, ongoing opportunities to participate in age-appropriate or developmentally appropriate activities and the caregiver is following the reasonable and prudent parent standard

Permanency Options

Citation: Cons. Stat. Tit. 42, § 6351At the hearing, the court shall determine one of the following:

• If and when the child will be returned to the child’s parent.
• If and when the child will be placed for adoption, and the county agency will file for termination of parental rights.
• If and when the child will be placed with a legal custodian.
• If and when the child will be placed with a fit and willing relative.
• If and when the child will be placed in another planned permanent living arrangement that is approved by the court, to which the following shall apply:
  • The child must be age 16 or older.
  • The county agency shall identify at least one significant connection with a supportive adult willing to be involved in the child’s life as the child transitions to adulthood, or document that efforts have been made to identify a supportive adult.
  • The county agency shall document and the court shall verify:
    • A compelling reason that it would not be best suited to the safety; protection; and physical, mental, and moral welfare of the child to be returned to the child’s parent, to be placed for adoption, to be placed with a legal custodian, or to be placed with a fit and willing relative
    • The intensive, ongoing, and unsuccessful efforts to return the child to the child’s parent or achieve another permanent placement
    • The county agency’s efforts to utilize search technology to find biological family members for the child
  • The court shall:
    • Ask the child about his or her desired permanency goal
    • Make a judicial determination explaining why, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the child

Current Through March 2016

Citation: Cons. Stat. Tit. 42, § 6301(b)(1), (1.1), (3), (4)This chapter shall be interpreted and construed as to effectuate the following purposes:

• To preserve the unity of the family whenever possible or to provide another alternative permanent family when the unity of the family cannot be maintained
• To provide for the care, protection, safety, and wholesome mental and physical development of children coming within the provisions of this chapter
• To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his or her welfare, safety, or health, or in the interests of public safety
• To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights recognized and enforced

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Cons. Stat. Tit. 23, § 2511The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

• The parent, for at least 6 months, either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
• The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his or her physical or mental well-being, and the conditions and causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent.
• The parent is the presumptive but not the natural father of the child.
• The child has been found under such circumstances that the identity or whereabouts of the parent is unknown and cannot be ascertained by diligent search, and the parent does not claim the child within 3 months after the child is found.
• The child has been in an out-of-home placement for at least 6 months, the conditions that led to the placement continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions that led to the removal or placement of the child within a reasonable period of time, and termination of the parental rights would best serve the needs and welfare of the child.
• In the case of a newborn child, the parent knows or has reason to know of the child’s birth, does not reside with the child, has not married the child’s other parent, and has failed for 4 months to make reasonable efforts to maintain substantial and continuing contact or to support the child.
• The parent is the father of a child conceived as a result of a rape or incest.
• The child has been removed from the care of the parent, 12 months or more have elapsed from the date of removal, the conditions that led to the removal continue to exist, and termination of parental rights would best serve the needs and welfare of the child.
• The parent has been convicted of one of the following in which the victim was a child of the parent:
  • Criminal homicide
  • Aggravated assault
  • An attempt, solicitation, or conspiracy to commit an offense listed above

Circumstances That Are Exceptions to Termination of Parental Rights

Citation: Cons. Stat. Tit. 23, § 2511The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing, and medical care, if found to be beyond the control of the parent.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through December 2014

Definitions

Citation: Cons. Stat. Tit. 42, § 6302; Pol. # 3130-10-02/3140-10-03; Benchbook § 11.4The term ‘custodian’ means a person other than a parent or legal guardian who stands in loco parentis to the child or a person to whom legal custody of the child has been given by order of a court.

In policy: ‘Permanent Legal Custodianship (PLC)’ is a permanency option for a child who is in the custody of the county agency and who is placed in substitute care.

A ‘relative’ is a person who is related by blood, marriage, or adoption within the fifth degree of kinship to the child, including great-great-great grandparents and first cousins once removed (children of first cousins).

The term ‘kinship’ encompasses those relationships that fall under Pennsylvania’s current definition of kin that exists in other areas of practice and policy, including existing relationships with a child that meets at least one of the following:

• A relative through blood, marriage, or adoption
• A godparent as recognized by an organized church
• A member of the child’s Indian Tribe, nation, or clan
• An individual with a significant, positive relationship with the child or family

An individual with a significant, positive relationship with the child or family would be a person who knew the child or family prior to the execution of the PLC agreement. This may include relationships established with a teacher, current or former resource parent, etc.

A ‘Subsidized Permanent Legal Custodianship (SPLC)’ is a permanent legal custodianship arrangement where a Federal, State or county subsidy is provided to the custodian for the cost of providing care to a child.

In court rules: Legal custodianship in Pennsylvania is the equivalent of legal guardianship under the Social Security Act (42 U.S.C. § 675(7)) and is a formal legal arrangement that transfers custody of a minor child from the natural parent to a relative or other caregiver.

Purpose of Guardianship

Citation: Policy Bulletin # 3130-10-02/3140-10-03; Benchbook § 11.4Permanent Legal Custodianship (PLC) is an available option for a child to achieve permanency. While it is not appropriate for all children, especially very young children, PLC may serve other children very well. For those children with strong bonds to parents who are unable to care for them, due to ongoing physical or behavioral health issues, or for older children who have been appropriately counseled about adoption and remain adamantly against it, permanency through placement with a permanent legal custodian may be the most optimal consideration, especially when the custodian is a relative, allowing the child to remain in his or her family system.

Parental consent is not required for a PLC and parental rights need not be terminated. When appropriate, the parent should be involved in the development of the child’s placement, permanency and visitation plan, as well as financial support.

In court rules: In the hierarchical scheme of permanency options, permanent legal custodianship is less desirable than reunification or adoption, but preferable to permanent relative placement and another planned permanent living arrangements. It has a higher preference because it provides permanency and stability without ongoing State oversight, while often maintaining ties with siblings, extended family members, and the biological parents.

A Guardian’s Rights and Responsibilities

Citation: Cons. Stat. Tit. 42, § 6357; Benchbook § 11.4A custodian to whom legal custody has been given by the court under this chapter has the right to the physical custody of the child; the right to determine the nature of the care and treatment of the child, including ordinary medical care; and the right and duty to provide for the care, protection, training, education, and the physical, mental, and moral welfare of the child. An award of legal custody shall be subject to the conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child as determined by the court. The court may award legal custody under this section on a temporary basis to an individual or agency under § 6351(a)(2) (relating to disposition of dependent child) or permanent basis to an individual under section 6351(a)(2.1).

In court rules: The legal custodian’s rights and duties include:

• The right and duty to make decisions on behalf of the child, including decisions regarding the child’s travel, driver’s license, marriage, and enlistment in the armed forces
• The right to petition for child support from the child’s parent
• The obligation to pay legal expenses related to a parent’s request to change custody or visitation

The parental rights and duties include:

• The right to visitation when it does not affect the health and safety of the child
• The right to petition for custody of the child
• The right to pass on property to the child
• The duty to pay child support

Qualifying the Guardian

Citation: Cons. Stat. Tit. 23, § 6344; Admin. Code Tit. 55, §§ 3700.66; 3700.67The child-placing agency must have assessed the ability of the prospective guardian to provide a safe home for the child. The approval process must include conducting State and Federal criminal records checks and a check of the State child abuse and neglect central registry.

In regulation: A determination must be made that the home of the prospective guardian meets all relevant health and safety standards.

Procedures for Establishing Guardianship

Citation: Cons. Stat. Tit. 42, § 6351(a)(2.1)If the child is found to be a dependent child, the court, subject to conditions and limitations as the court prescribes, may transfer permanent legal custody to an individual resident in or outside this Commonwealth, including any relative, who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.

Contents of a Guardianship Order

Citation: Cons. Stat. Tit. 42, § 6351(a)(2.1)A court order under this paragraph may set forth the temporary visitation rights of the parents. The court shall refer issues related to support and continuing visitation by the parent to the section of the court of common pleas that regularly determines support and visitation.

Modification/Revocation of Guardianship

Citation: Benchbook § 11.4The legal custodianship order remains in place until a court terminates it or until the child is adopted, turns 18, or marries. When legal custodianship is set as the permanency plan goal, the court should make every effort to ensure the parties understand that the relationship is to be permanent and that a change in custody will not be made lightly.

Although the legal custodianship is considered permanent, it may be terminated with judicial approval, following the filing of a petition by the agency. (Because the grant of permanent legal custody closes the dependency case, however, this is technically a new proceeding.) The biological parent or the legal custodian also may file motions to have the legal custodianship terminated. Whether the petition is filed by the agency following a determination that the child is in danger, by a parent seeking the return of the child, or by a legal custodian wishing to be relieved of custodial responsibilities, the court must decide whether to continue or revoke the legal custodianship on the basis of the best interests of the child.

Eligibility for Guardianship Subsidy

Citation: Policy Bulletin # 3130-10-02/3140-10-03The Federal subsidized permanent legal custodianship (SPLC) program provides subsidy support to relative/kinship permanent legal custodians to enable them to provide ongoing adequate and appropriate care for the child. For the child to be eligible for Federal subsidy, the child must:

• Have been eligible for title IV-E foster care maintenance payments for 6 consecutive months while in placement with the relative/kinship caregiver
• Have been in foster care with the relative/kinship caregiver who meets all of the Federal eligibility requirements for at least 6 consecutive months during the current custody episode
• Have a strong bond with the relative/kinship caregiver
• Have been consulted if age 14 or older
• Be a child who is in county custody and who is the sibling of an eligible child and who is placed in the same custodian home

To be eligible for a Federal subsidy, the prospective guardian must:

• Be an approved resource home, having met all of the requirements of Title 55 Pa. Code Chapter 3700 regarding foster family home approval, and not be on provisional status
• Have all clearances required for ongoing home approval up-to-date
• Meet the definition of ‘relative/kinship’

If the requirements for a Federal subsidy cannot be met, a State-funded subsidy may be considered. To meet State subsidy guidelines, the child must have lived, or be living, with the identified custodian for a total of 6 months, which need not be consecutive. To be eligible for a State subsidy, the guardian must:

• Meet all of the requirements regarding foster family home approval
• Have all clearances required for ongoing home approval be up-to-date
• If already an approved resource parent, not be on provisional status

Links to Agency Policies

Pennsylvania Office of Children, Youth and Families Bulletin, Permanent Legal Custodian Policy (PDF – 212 KB)

Pennsylvania Dependency Benchbook, Chapter 11, Permanency Options (PDF – 85 KB)

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Cons. Stat. Tit. 42, § 6351; Pa. Stat. Tit. 62, §§ 1302; 1303The custody of a dependent child may be transferred to a relative.

When a child must be placed in foster care, first consideration shall be given to a relative of the child. A relative is an individual who is related within the fifth degree to the child or stepchild and who is at least age 21.

Except in situations of family or domestic violence, the county agency shall exercise due diligence to identify and notify all grandparents and other adult relatives to the fifth degree of consanguinity or affinity to the parent or stepparent of a dependent child within 30 days of the child’s removal from the child’s home when temporary legal and physical custody has been transferred to the county agency. The notice must explain all of the following:

• Any options under Federal and State law available to the relative to participate in the care and placement of the child, including any options that would be lost by failing to respond to the notice
• The requirements to become a foster parent, permanent legal custodian, or adoptive parent
• The additional supports that are available for children removed from their home

If a child has been removed from the child’s home under a voluntary placement agreement or is in the legal custody of the county agency, the county agency shall give first consideration to placement with relatives. The county agency shall document that an attempt was made to place the child with a relative. If the child is not placed with a relative, the agency shall document the reason why such placement was not possible.

Requirements for Placement with Relatives

Citation: Cons. Stat. Tit. 42, § 6351; Pa. Stat. Tit. 62, § 1303The relative must be found to be qualified to receive and care for the child.

Relatives providing care for the child will receive the same foster care rate as other foster parents if they are complying with regulations.

Requirements for Placement of Siblings

Citation: Cons. Stat. Tit. 42, § 6351(b)Prior to entering any order of disposition that would remove a dependent child from his or her home, the court shall determine, if the child has a sibling who is subject to removal from his or her home, whether reasonable efforts were made prior to the placement of the child to place the siblings together or whether such joint placement is contrary to the safety or well-being of the child or sibling.

If a sibling of a child has been removed from his or her home and is in a different placement setting than the child, the court shall enter an order that ensures visits between the child and the child’s sibling no less than twice a month, unless a finding is made that the visits are contrary to the safety or well-being of the child or sibling.

Relatives Who May Adopt

This issue is not addressed in the statutes and regulations reviewed.

Requirements for Adoption by Relatives

Citation: Cons. Stat. Tit. 23, § 2531A report of intention to adopt shall not be required when the child is the child; grandchild; stepchild; brother or sister of the whole-blood or half-blood; or niece or nephew by blood, marriage, or adoption of the person receiving or retaining custody or physical care.

Current Through March 2016

What Are Reasonable Efforts

Citation: Cons. Stat. Tit. 23, § 6373; Tit. 42, § 6351Reasonable efforts include:

• Efforts to assist the child and the child’s parent
• Preventive services

When Reasonable Efforts Are Required

Citation: Cons. Stat. Tit. 23, § 6373; Tit. 42, § 6351Reasonable efforts must be made:

• To prevent or eliminate the need for removal of the child from the home
• To make it possible for the child to return home
• To finalize the permanency plan in effect
• To place siblings together unless a joint placement is contrary to the safety or well-being of the child or sibling

If a sibling of a child has been removed from his home and is in a different placement setting than the child, the court shall enter an order that ensures visitation between the child and the child’s sibling no less than twice a month, unless a finding is made that visitation is contrary to the safety or well-being of the child or sibling.

When Reasonable Efforts Are NOT Required

Citation: Cons. Stat. Tit. 42, §§ 6351; 6302Reasonable efforts are not required if the court has determined that aggravated circumstances exist and no new or additional efforts are required. Aggravated circumstances include any of the following:

• The child is in the custody of a county agency, the identity or location of the parents is unknown, and the parent does not claim the child within 3 months or has failed to maintain contact for a period of 6 months.
• The child or another child of the parent has been the victim of serious physical abuse, sexual violence, or aggravated physical neglect by the parent.
• The parent has been convicted of any of the following crimes in which the victim was a child: criminal homicide, aggravated assault, rape, statutory sexual assault, indecent assault, or the attempt to commit any such crime.
• The parent’s parental rights to another child have been terminated involuntarily.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation: Cons. Stat. Tit. 23, § 5611A custodial parent, legal custodian, or legal guardian may designate a standby guardian.

How to Establish a Standby Guardian

Citation: Cons. Stat. Tit. 23, §§ 5611; 5612A standby guardian may be designated by a written designation that:

• Identifies the person making the designation, the minor or minors, any other parent, the standby guardian, and the triggering event or events that will commence the guardianship
• Has been signed by the designating person in the presence of two witnesses who are 18 years of age or older and not otherwise named in the designation, who shall also sign the designation

Different standby guardians may be designated for different triggering events.

A petition for court approval of a designation may be made at any time. If the triggering event has not yet occurred, only the designator may file the petition. If the triggering event has occurred already, the standby guardian may file the petition.

A designation may be approved without a court hearing if there is only one parent.

How Standby Authority is Activated

Citation: Cons. Stat. Tit. 23, §§ 5612; 5613The standby guardian shall have authority to act as guardian upon the occurrence of a triggering event, including the parent’s death, incapacity, physical debilitation with consent, or written consent alone.

If a designation has been made but the petition for approval of the designation has not been filed and a triggering event has occurred, the standby guardian shall have temporary legal authority to act as guardian of the minor without the direction of the court for a period of 60 days. The standby guardian shall within that period file a petition for approval in accordance with § 5612.

The petition of the standby guardian shall contain one of the following:

• A determination of the designator’s incapacity
• A determination of the designator’s debilitation
• The designator’s signed and dated consent
• A copy of the designator’s death certificate

If no petition is filed within the 60 days, the standby guardian shall lose all authority to act. If a petition has been filed but the court does not act upon it within the 60-day period, the temporary legal authority to act as guardian shall continue until the court orders otherwise.

Involvement of the Noncustodial Parent

Citation: Cons. Stat. Tit. 23, § 5611
Consent of the other parent is required when the parent’s whereabouts are known, his or her parental rights have not been terminated, and the parent is willing and able to care for the child.

Authority Relationship of the Parent and the Standby

Citation: Cons. Stat. Tit. 23, § 5613The commencement of the standby guardian’s authority to act due to incapacity, debilitation and consent, or consent alone shall not itself divest the designator of any parental rights but shall confer upon the standby guardian concurrent or shared custody of the child.

The commencement of the standby guardian’s authority to act as guardian due to the death of the designator shall not confer upon the standby guardian more than physical and legal custody.

A standby guardian shall ensure frequent and continuing contact with the child and ensure the involvement of the parent, including, to the greatest extent possible, in decision-making on behalf of the child.

Withdrawing Guardianship

Citation: Cons. Stat. Tit. 23, §§ 5613; 5614If a licensed physician determines that the designator has regained capacity, the standby guardian’s authority that commenced on the occurrence of a triggering event shall become inactive, and the standby guardian shall return to having no authority.

Prior to a petition being filed, the designator may revoke a standby guardianship by simple destruction of the designation and notification of the revocation to the standby guardian. After a petition has been filed, the designator may revoke a standby guardianship by:

• Executing a written revocation
• Filing the revocation with the court
• Notifying the persons named in the designation of the revocation in writing

Regardless of whether a petition has been filed, an unwritten revocation may be considered by the court if it can be proven by clear and convincing evidence.