Lawyers Journal

CHINS reform: What the statute changes mean for your practice

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 court system.

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 system.

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 offenders.

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 drafted.

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 "fact-finding hearing."

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 preliminary hearing.

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.

Temporary Custody, not Bail

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 certain circumstances.

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 Superior Court.)

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 preference:

To the parent, guardian, or custodian, upon the written promise of that person to bring the child to court on the next court date;

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 informal assistance.

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." s. 39H

The warrant of custodial protection requires the three-part diversion efforts discussed above, even if the courthouse is open.

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.

Disposition

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 conference.

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 disposition.

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.

Appeals

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 process.

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 future.

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.

Expungement

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.

Retroactivity

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.

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