On Aug. 7, 2012, Gov. Deval Patrick signed into law Chapter 240
of the Acts of 2012, reforming the Child in Need of Services
statute. An overhaul of the 38-year-old CHINS program was supported
and worked on by advocates for nearly seven years.
While the drafters of the new law intended that the new system
be called "FACES," for "families and children engaged in services,"
that term is not contained in the actual statute, but only in the
title of the act signed by the governor. The new law refers to the
subject of an application as being a "child requiring assistance."
This is the term being used by the Juvenile Court to refer to the
law, or "CRA" for short. The label "child in need of services," or
"CHINS," is no longer being used, as it was felt that the term had
come to be a stigmatizing label for children involved with the
The new law has two main features: The implementation of a
system of services for families needing assistance, and changes in
the procedures when children are brought to court.
The major changes in the legal procedures include the banning of
the use of shackles or other restraints, and the banning of the use
of police station or courthouse lockups. For the first time in
Massachusetts, a whole category of court cases will be expunged.
The right to counsel for children and parents is expanded. Many
timeframes have been shortened or specified for the first time. The
act provides for significant changes in the procedures for
warrants. Instead of being held on bail, the new law provides that
children can be ordered into the temporary custody of the
Department of Children and Families. The CRA law also mandates that
a conference be held with the family and its service providers
before the court can hold a dispositional hearing.
The new CRA statute also made a major change in the processing
of all interlocutory appeals from Juvenile Court, adding the
juvenile court to the departments that are included in c. 231 s.
118, providing for interlocutory appeals to be filed with the
single justice of the Appeals Court.
In terms of the provision of services to families, the new law
seeks to divert children from the legal process, when appropriate,
and direct them to behavioral, medical and mental health treatment,
as well as other behavioral and preventative services such as
special education evaluations, mentoring, family and parent
support, and after-school and out-of-school opportunities. In order
to begin the process, the new act establishes programs that should
be phased in throughout the state over the next three years,
subject to appropriation.
The reform of the CHINS law was intended by the drafters of the
legislation to break down barriers between the juvenile court,
parents, and the community, and create a second access point for
children to receive necessary services. Over three years, the law
creates a statewide network of community-based programs and
services, including direct access to mental health and substance
abuse counseling. The law hopes to steer children away from the
court system and refocus on prevention rather than punishment.
The new law also creates a standardized data collection system
to evaluate outcomes and ensure that the commonwealth and children
appropriately benefit from the new system. Data will be collected
both within the court and also within the new service delivery
The CRA law also encourages school districts to implement formal
truancy prevention programs, to be regulated by the Department of
Elementary and Secondary Education.
A formal advisory board is also created by the new law, which
will oversee the implementation of the service delivery system.
One of the goals of the new statute is to focus on the entire
family and provide short-term intervention, rather than a system
that entangles the child and family in the child welfare system for
an extended period of time.
Procedural Changes in CRA Statute
While the services portion of the law has a three-year phase in
period, the procedural changes to M.G.L. Chapter 119 went into
effect on Nov. 5, 2012.
One of the major changes in the new law is that "applications
for assistance" may be filed up until the child's 18th birthday.
The prior statute only allowed CHINS petitions to be filed up until
the child's 17th birthday. G.L. c. 119, s. 21. A school-based
application must still be dismissed when the child turns 16. G.L.
c. 119, s. 39G.
The four categories of status offenses that were contained in
the old law have been retained in the new law, i.e. children who
run away, or are stubborn, truant, or habitual school
The sexual trafficking law contained in Chapter 178 of the Acts
of 2011 had added a fifth category of CHINS petitions, for a
"sexually exploited child." While the definition of "sexually
exploited child" remains in c. 119 s. 21, the category was
inadvertently deleted from the definition of "child requiring
assistance," raising questions as to whether that type of
application can still be filed.
The ability to file a CHINS for a sexually exploited child was
integral to the diversion efforts contained in c. 119 s. 39L, which
allows a child under the age of 18 charged with a sexual offense to
be treated as a victim rather than as a defendant. Even without the
provision for a "sexually exploited child" CRA application, it
still remains possible for a parent, legal guardian, or custodian
to file a stubborn or runaway application to take advantage of the
diversion allowed by c. 119 s. 39L.
The new law eliminates the ability of police officers to file
petitions in runaway or stubborn child cases, but allows
"custodians" of children to file runaway and stubborn applications,
as well as parents and legal guardians. The addition of the word
"custodian" to the list of persons who may file would appear to
confirm the practice of allowing the Department of Children and
Families to file an application for assistance for a child who has
run away while in DCF custody. The new law also appears to make
clear that the person filing a runaway or stubborn petition must
have custody of the child. "A parent, legal guardian, or custodian
of a child having custody of such child, may initiate an
application for assistance. …" C. 119 s. 39E.
The CRA law no longer requires a school attendance officer to
file a school-based application, but rather provides that a "school
district" may file a school-based application. This raises
questions as to who is the proper person to authorize the filing
and to appear in court for the school district, and whether the
school district would need to be represented by an attorney. See c.
119, s. 39E.
The new law requires that specific statements be filed with all
school-based applications. With truancy applications, the school
must state "whether or not the child and the child's family have
participated in the truancy prevention program, if one is
available, and a statement of the specific steps taken under the
truancy prevention program to prevent the child's truancy." With
habitual school offender applications, the school must state "the
specific steps taken by the school to improve the child's conduct."
C. 119, s. 39E.
Consistent with the emphasis of the new statute on the provision
of services to the family before an application for assistance is
filed with the court, the clerk's office is to inform the
petitioner of the services available to the family. The clerk's
office is also mandated to prepare and provide to each petitioner
"educational material" relative to available services. For parents,
guardians, and custodians, the clerk is also to provide
"informational materials" that explain the court process and the
possibility of changes in the custody of the child. The educational
materials relative to available services have not yet been
Upon the filing of an application, the court has to schedule a
date for preliminary hearing "as soon as possible, but not later
than 15 days after the request is presented to the clerk for
filing," and must appoint counsel for the child immediately, if the
child is determined to be indigent. At the preliminary hearing, the
court can dismiss the application, refer the matter to probation
for informal assistance, or accept the application and schedule a
The 2012 law expands the right to counsel for parents, providing
for counsel at any hearing regarding custody of the child. Because
temporary custody of the child can be granted to DCF at the
preliminary hearing, parents should now have the right to counsel
at that hearing. The case of Matter of Hilary, 450 Mass.
491 (2008), only provided for counsel at the dispositional hearing,
if custody of the child could be granted to DCF. So the new law
allows for the possibility of the provision of counsel for the
parents at a much earlier stage of the proceeding.
The informal assistance offered under the new law is essentially
the same as it was under the old law, except that it will be much
shorter, with a maximum of 180 days, instead of the 12 months
maximum under the prior law (two six-month periods).
The new law also attempts to address the issues raised in the
case of Matter of Gail, 417 Mass. 321 (1994), as to when a
parent can dismiss an application. While the legislative intent was
to allow the parents more control over how far to go with an
application, the final language leaves much to the discretion of
the court. But at least up until the dispositional hearing, the
parent can file a motion to dismiss the request for assistance, and
the court must entertain the request. Any other party to the case
can also file a motion to dismiss. Counsel for the child in
appropriate cases should consider filing a written motion to
dismiss with supporting material that would satisfy the
requirements of the new statute.
The right to a jury trial on status offenses is eliminated in
the new statute. The "fact-finding hearing" is a bench trial, and
there is no trial de novo. This may mark the removal of
the last remnant of trial de novo in the commonwealth.
The adjudication that the child is a CRA must still be
determined beyond a reasonable doubt. The fact-finding hearing is
to be heard before a different judge than the judge who heard the
The new law does not specify any timeframes for when the
fact-finding hearing, the conference, or the disposition hearing
must be held. The time standards currently in effect for CHINS
cases allow six months from the preliminary hearing to the
adjudication and disposition of a case.
The prior bail section of the CHINS statute has been repealed,
and replaced with a new provision that allows the court to grant
temporary custody to the DCF at the preliminary hearing under
The prior bail statute only applied to stubborn child petitions,
if the child was likely not to appear at the adjudicatory hearing.
Like the prior bail statute, the new temporary custody provision
should be read to apply only in stubborn child applications, where
it is determined that the child is likely not to appear at future
hearings. Consistent with the client's wishes, counsel for the
child should object to the use of the temporary custody provision
in any case which is not a stubborn child case. And counsel should
also object if there is no showing that the child is likely not to
appear at the fact finding or disposition hearing.
Unfortunately, in drafting the new statute, an extra word ["or"]
was added to the statute that could possibly be used to allow
temporary custody in two situations: if it is a stubborn
application, "or" if the child is likely not to appear at the fact
finding or disposition hearing. "If the court finds that a child
stated to require assistance by reason of repeatedly refusing to
obey the lawful and reasonable commands of such child's parents,
legal guardian or custodian or [sic] is likely not to appear at the
fact finding or disposition hearing, the court may order the child
to be released upon such terms and conditions as it determines to
be reasonable or, if the standards below are met, may place the
child in the temporary custody of the department of children and
families." c. 119 s. 39H. But the addition of the word "or" makes
the sentence grammatically incorrect, and counsel should resist
attempts to use this new provision in any CRA case which is not a
stubborn child case.
Because it is a custody order, the court must make a written
certification and determination of reasonable efforts, as it does
in care and protection cases. The new law requires that before a
child can be placed in temporary custody the court must find that
DCF has made reasonable efforts to prevent removal "or there is an
immediate risk of harm or neglect which precludes the provision of
preventative services as an alternative to removal." c. 119 s. 39H.
This appears different from the care and protection statute, which
allows the court to make a "no reasonable efforts" finding and
still grant DCF custody. Counsel should contest the reasonable
efforts findings in CRA cases where the child is objecting to being
placed in the temporary custody of DCF.
The court is required to make all determinations at the
temporary custody stage by a preponderance of the evidence, as in a
72-hour hearing in a care and protection case. The temporary
custody can last for a maximum of 15 days, and can be extended only
twice, for a total maximum of 45 days.
As discussed above, before holding a preliminary hearing where
the child may be placed in the temporary custody of DCF, the court
must appoint counsel for the parent.
Any appeal of the placement of a child in the temporary custody
of DCF is by G.L. c. 231 s. 118 to a single justice of the Appeals
Court. (The prior bail statute provided for a bail appeal to the
New Warrant Provisions
No child is to be confined in shackles or similar restraints, or
placed in court lockup, after the effective date of the new CRA
statute, under any circumstances.
The statute does not refer to the power to "arrest" children
requiring assistance, but rather considers that the child is taken
into "custodial protection." The new law requires law enforcement
to immediately notify the parent when a child is taken into
"custodial protection," and does not allow the police to take the
child to the police station. A child may be taken into custodial
protection only if the child has failed to obey a summons or has
run away from home.
Upon being taken into custodial protection, the first call the
police officer shall make is to immediately notify the parent or
custodian, including DCF if they have custody. In consultation with
the on-duty probation officer, the police officer shall then
immediately make diversion efforts, in the following order of
To the parent, guardian, or custodian, upon the written promise
of that person to bring the child to court on the next court
To a temporary shelter forthwith and with all reasonable speed
and without first being taken to the police station house; or
Directly to the juvenile court, but only if the officer
certifies that he could not do options 1 or 2.
Notwithstanding these requirements for placement, any child who
is taken into custodial protection shall, if necessary, be taken to
a medical facility for treatment or observation.
The application for assistance automatically issues when a child
has been taken into custodial protection, if it has not previously
issued, and the court then determines whether a fact-finding
hearing should be scheduled or the matter should be referred for
A memorandum issued by the Juvenile Court concerning the CRA law
states that if a child has been brought to a courthouse by the
police, and there is no pending CRA case (or the CRA case is in a
different courthouse), and the child's parent cannot be located or
is unable to come to the courthouse, probation must file a 51A
against the parent, and then contact DCF to take the child into
custody under G.L. c. 119, sec. 23(5). It is unclear if the court
will permit the child to be released to another responsible adult
if the parent is unable to get to the courthouse.
The Juvenile Court memorandum also provides for a "warrant of
protective custody," which is described as analogous to a warrant
of apprehension from the District Court. This warrant authorizes
the police officer to take the child into protective custody and
bring the child directly to the courthouse which issued the
warrant, as long as the child can be brought before a judge prior
to 4:30 p.m. on the same date that the warrant is executed. This
type of warrant is issued by the court if a summons was served on
the child and the child fails to appear in court.
This alternate warrant procedure is perhaps only referred to in
c. 119 s. 39E, which provides that upon the initial filing of an
application for assistance, the court may issue a summons requiring
the child to appear in court for the preliminary hearing. "If such
child fails to obey the summons, said court may issue a warrant
reciting the substance of the petition and requiring the officer to
whom it is directed forthwith to take and bring such child before
said court." It would appear to be allowed only in the case where a
child has failed to appear for a preliminary hearing after being
served with a summons.
All other warrants in CRA cases should fall under s. 39H, the
"warrant of custodial protection," which applies when a child has
failed to obey a summons issued pursuant to s. 39E, or "if the law
enforcement officer initiating such custodial protection has
probable cause to believe that such child has run away from the
home of his parents or guardian and will not respond to a summons."
The warrant of custodial protection requires the three-part
diversion efforts discussed above, even if the courthouse is
In the case where a child has run away from home and there is no
CRA application, upon the parent or custodian filing the runaway
CRA application, the court would need to issue the summons to the
child and have the child not appear for the preliminary hearing
before a warrant could be issued.
The alternative procedure would be to have the police take the
child into custodial protection under the provision that allows a
law enforcement officer to initiate custodial protection if there
is probable cause to believe the child has run away and will not
respond to a summons.
The warrants issued in new CRA cases are not entered into the
warrant management system maintained by the courts and law
enforcement. Law enforcement authorities have raised concerns about
their inability to access information about these warrants, and
about the absence of procedures for transporting children and
notifying parents and custodians from the field.
Defense counsel are concerned that the new CRA warrant procedure
may cause police to bring minor charges against runaway or stubborn
children in order to allow the child to be restrained.
After the court has determined at a fact-finding hearing that
the child requires assistance, the court holds a dispositional
hearing to determine whether a custody order shall enter. Before
the court can hold the dispositional hearing, it must convene a
conference in which the judge may participate. The probation
officer is required to present written recommendations at the
There is also an opportunity for counsel for other parties to
provide written recommendations at the conference. The conference
allows an opportunity for counsel, whether representing the child
or a parent or guardian, to bring to court all collaterals that are
involved with the family to provide information about the needs of
the child and family.
Counsel should strategize their presentation at the conference,
and determine whether collaterals should be summonsed to appear, or
records should be summonsed to present to the court.
The ability of the probation officer and collaterals involved
with the family to present information at the conference raises
issues of confidentiality that need to be brought forward by
counsel and determined by the court.
Counsel for both children and parents should also remember that
up until the disposition hearing, they may file a motion to dismiss
the application, as discussed above.
After the fact-finding hearing, the new law mandates a
conference and a disposition hearing. But there is no provision in
the new law for a continuation of temporary custody beyond 45 days.
Counsel should object to the court placing the child in temporary
custody pending the conference and disposition in cases where the
child is opposed to it, and where the total time in custody would
last beyond 45 days. The status offense law is construed narrowly
and additional terms are not read into the statute. See In re
Vincent, 408 Mass. 527 (1990) andComm. v. Florence
F., 429 Mass. 523 (1999).
Continued bail or temporary custody was not required under the
prior bail statute because the adjudication and disposition were
done at the same time. Now the statute requires a conference before
The juvenile court may attempt to hold some of these different
court events on the same day. The juvenile court memorandum on the
CRA law directs that the conference and disposition be held on the
same day in all cases.
The other disposition provisions of the new law essentially
mirror the old law, except that the timeframes for a disposition
order are drastically reduced, and the maximum amount of time that
an order can last is 390 days. This time limit is in place because
the first dispositional order can only be for a maximum of 120
days, and it can only be further extended for ninety days at a
time, for a maximum of three times. Query whether dismissing a CRA
case after 390 days will result in the filing of a new application,
as sometimes happened before under the CHINS law at age 16 when a
school-based petition had to be dismissed and a parent would file a
stubborn petition. In the absence of a new CRA application, it is
possible that DCF would accept a voluntary placement agreement from
the parent, or DCF would file a care and protection case to keep
custody of the child.
As was held by the SJC in the Matter of Angela, 445
Mass. 55 (2005), the "fact-finding hearing" and the dispositional
hearing and extension hearings require evidence to be heard, and
must follow the rules of evidence.
The juvenile court has determined that the provisions of the new
CRA law should be applied retroactively to all CHINS case pending
on Nov. 5, 2012. This requires that CHINS cases where the child has
a dispositional order that has been in effect for more than 390
days be dismissed on the next date the case is in court.
Children turning 18 who are in the custody of DCF and want to
continue to receive services can still sign themselves in to DCF as
adults and have the benefit of permanency reviews under c. 119 s.
29B past their 18th birthday.
In an effort to expedite appeals, the new law provides that an
appeal of any order in a CRA case must be filed under G.L. s. 231
s. 118, which is an interlocutory appeal to the single justice of
the Appeals Court. The law appears to require that an appeal of a
final order after an initial dispositional hearing must also be
taken under c. 231 s. 118, as opposed to the regular appellate
The CRA law also provides that all such appeals, whether final
or interlocutory, shall proceed under the Mass. Rules of Appellate
Procedure, which otherwise have not been used in cases under c. 231
s. 118. As appeals filed under c. 231 s. 118 go to a single justice
of the Appeals Court, they have their own set of rules which do not
follow the Rules of Appellate Procedure. As these provisions for
appeals do not make sense, the appellate process in the new law is
likely to be the subject of proposed technical amendments in the
In addition, the new act changes the interlocutory appeal
process in all cases in Juvenile Court, including care and
protection cases. Interlocutory appeals in all juvenile court cases
must now be filed in the Appeals Court under G.L. c. 231, sec. 118,
not in the SJC under G.L. c. 211, sec. 3.
The new law prohibits CRA cases from being entered into the
state Criminal Offender Record Information (CORI) system, or the
Court Activity Record Index (CARI) system, as CHINS cases were.
Counsel should argue for retroactive application of this
provision and should request upon dismissal of all cases that the
court remove all records pertaining to the case and expunge all
records from CORI and CARI.
"[N]o record pertaining to the child involved in the proceedings
shall be maintained or remain active after the application for
assistance is dismissed." C. 119 S. 39E
And in those circumstances where an application is dismissed
before a "fact-finding hearing," the new law provides that "the
court shall enter an order directing expungement of any records."
Counsel should ensure that such an order enters.
The juvenile court memorandum states that the new law should be
applied retroactively to all open CHINS cases pending on Nov. 5,
2012. The new law will be applied at whatever stage the CHINS case
is at on the next scheduled court date. The CHINS case will
essentially be converted to a CRA application and the procedure of
the new law will be applied. Any warrants are to be expunged from
CORI and CARI upon the dismissal of the case.
The new CRA law updates many court procedures and provides for
more consistent treatment of the cases as civil custody matters
rather than quasi-criminal matters. This completes the progression
of the status offense statute from a delinquency-based system to a
system that is intended to provide services to children and
families having difficulties. The ultimate success of the new law
will be measured when the new system of services is in place
throughout the state.