Expanding Abuse Prevention Order (209A) Jurisdiction to the Juvenile Court

Issue January/February 2020 February 2020 By Cristina F. Freitas, Debbie F. Freitas and Alexandra Roark
Juvenile & Child Welfare Section Review
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From left: Cristina F. Freitas, Debbie F. Freitas and Alexandra Roark

The abuse prevention law in Massachusetts allows anyone who has been harmed or threatened with harm to seek an abuse prevention, restraining, or protective court order (a “209A”) against a family member or spouse, someone whom they were living with or dating seriously, or the parent of a mutual child. The law currently provides that the petitioner can seek this order in the Superior, Probate and Family, District, or Boston Municipal court departments of the Trial Court. The law also provides that if the petitioner is in a serious dating relationship, they must file in the District, Probate, or Boston Municipal courts. What the law does not currently provide for is Juvenile Court jurisdiction. Specifically, the Juvenile Court should be given exclusive jurisdiction over 209As anytime the youth is a respondent, and concurrent pendant jurisdiction when a minor is listed as a protected party in the 209A application and there is an open Juvenile Court child welfare case.

The case for providing the Juvenile Court with exclusive jurisdiction over 209As where the youth is a respondent is downright compelling. Twenty-seven years ago, the commissioner of probation, in partnership with the Department of Public Safety, implemented the Registry of Civil Restraining Orders. The first of its kind in the nation, the registry contained same-day information accessible to judicial and law enforcement agencies regarding the issuance and enforcement of restraining orders. For the first time, the registry captured all adolescent restraining orders issued in Massachusetts courts. Two years later, in 1994, the Office of the Commissioner of Probation analyzed the data collected in its study, “Young Adolescent Batterers: A Profile of Restraining Order Defendants in Massachusetts.” In this groundbreaking study, the commissioner found that in the first 10 months of the registry’s operation, 757 restraining orders were requested against juveniles between the ages of 11 and 17 across the state. The study identified and analyzed patterns in the demographics of the juvenile respondents by age, gender, pattern of violence in terms of previous court involvement, conditions of the order issued, and what the respondent/petitioner relationship was. The study found that over half of the respondents in adolescent restraining orders had a prior delinquency or adult arraignment (at the time, 17-year-olds were prosecuted as adults), and one-quarter had three or more prior delinquency or adult arraignments, but only 19 percent were under probation supervision at the time the order was issued. More than 50 percent of petitioners in adolescent restraining order cases were those who were currently or were previously in a dating relationship with the juvenile, while nearly 45 percent were the juvenile’s relatives or parents. Indeed, 79 percent of all familial abuse cases in the registry involved a child against a parent, followed by sibling-on-sibling abuse, and more than two-thirds of the orders issued involved incidents that occurred at the home of the juvenile or petitioner.

Not surprisingly, the study concluded that an adolescent restraining order should be used as a red flag for future interpersonal violence by juveniles, and that the “time of the issuance of the restraining order should be a time for intervention.” The study went so far as to recommend pre-restraining-order education for school-aged children and training for personnel in the courts, law enforcement, social services and schools. The recommended goal of providing adolescent restraining order intervention at the time of issuance closely parallels that of the Juvenile Court in general: to prevent future antisocial or violent behavior through the provision of services, while also reducing the stigmatization of being labeled a batterer. What the report did not address, and what the Legislature has not addressed over the last 27 years, is why the Juvenile Court does not have jurisdiction over adolescent-involved restraining order cases.

Since its inception, the Juvenile Court has built its foundation on understanding adolescent brain development and providing services in order to change the trajectory of youth who violate the law, run away, or disobey their parents, or who are abused or neglected by their parents. By maintaining a workforce of well-trained and experienced judges, probation officers, clerks, attorneys and social workers, the court allows adolescents to access necessary resources and increased support, and to realize positive behavioral changes. The numbers speak for themselves: in 2013, Massachusetts raised the age of adult criminal jurisdiction from 17 to 18 years old, diverting thousands of 17-year-olds to the Juvenile Court rather than the District Court. Despite that influx, juvenile crime has steadily decreased. Many studies have attributed that decrease to the Juvenile Court’s commitment to diverting youth into effective, community-based services, and the unique, developmentally appropriate approach the court takes.

Support for providing the Juvenile Court with concurrent pendent jurisdiction over cases where the child is not a respondent, but rather a protected party (as listed by the petitioner), when there is an open child welfare case is equally persuasive. Each year, countless children are included in restraining orders between parents dealing with domestic violence issues. However, when the Department of Children and Families takes custody from the feuding parents through Juvenile Court proceedings, all of the parties must return to the District Court to modify those restraining orders to allow for supervised visitation. This is truly a disservice to the children, as it is the Juvenile Court judge who heard all of the testimony at the emergency custody hearing and is in the best place to modify the restraining order to comport with the best interests of the children and the specific circumstances of the family.

Given the significant amount of time the Juvenile Court spends each day listening to family violence cases, whether it be a delinquency case stemming from an alleged sibling assault or a care and protection case with allegations of child-witnessed domestic violence, the Juvenile Court is best positioned to negotiate these tense situations in the context of child-involved restraining orders as well. The change to the statute would be minimal, but the benefit would be immense for the juvenile, the juvenile’s family and the community at large. Indeed, with the addition of exclusive Juvenile Court jurisdiction for adolescent respondents and concurrent pendant jurisdiction for child-involved 209As, the Legislature could not only position juveniles to receive more effective, developmentally appropriate services, it could also increase future community and family safety by addressing concerning behavioral patterns before these youth reach adulthood, and could provide family-specific relief in domestic violence cases where children are involved as a protected party. 

Cristina F. Freitas is a partner at Freitas & Freitas LLP in Lowell, where she represents parents and children in the child welfare and juvenile justice systems. She has been in practice since 2010.

Debbie F. Freitas is a partner at Freitas & Freitas LLP in Lowell, where she represents parents and children in the child welfare and juvenile justice systems. She has been in practice since 2010.

Alexandra Roark is a supervising staff attorney in the Trial Panel Support Unit of the Children and Family Law (CAFL) division of the Committee for Public Counsel Services (CPCS) in Boston. She has been in practice since 1994. The opinions expressed herein are her own and not that of her agency.