General Laws

[ First paragraph effective until November 5, 2012. For text effective November 5, 2012, see below.]

  Section 39H. A child may be arrested for committing the behavior described in the definition of child in need of services in section twenty-one, only if such child has failed to obey a summons issued pursuant to section thirty-nine E, or if the arresting law enforcement officer 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.

[ First paragraph as amended by 2012, 240, Secs. 24 and 25 effective November 5, 2012. For text effective until November 5, 2012, see above.]

  A child may be taken into custodial protection for engaging in the behavior described in the definition of "Child requiring assistance'' in section 21, only if such child has failed to obey a summons issued pursuant to section thirty-nine E, 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.

[ Second paragraph effective until November 5, 2012. For text effective November 5, 2012, see below.]

  Whenever such child is arrested and the court with jurisdiction over the case is not in session, the law enforcement officer in charge of the police station or town lockup to which the child has been taken, or his designee, shall immediately notify (1) the probation officer of the division of the juvenile court department within whose district such child was arrested or resides, or such other probation officer who may have knowledge of the child and (2) a representative of the department of children and families, if the law enforcement officer has reason to believe that the child is or has been in the care or custody of such department, and shall inquire into the case.

[ Second paragraph as amended by 2012, 240, Sec. 26 effective November 5, 2012. For text effective until November 5, 2012, see above.]

  After a law enforcement officer has taken a child into custodial protection, the officer shall immediately notify the parent, other person legally responsible for the child's care or the person with whom the child is domiciled, that such child is under the custodial protection of the officer and a representative of the department of children and families, if the law enforcement officer has reason to believe that the child is or has been in the care or custody of such department, and shall inquire into the case.

  The law enforcement officer, in consultation with the probation officer, shall then immediately make all reasonable diversion efforts so that such child is delivered to the following types of placements, and in the following order of preference:

[ Clause (i) of the third paragraph effective until November 5, 2012. For text effective November 5, 2012, see below.]

  (i) to one of the child's parents, or to the child's guardian or other responsible person known to the child, or to the child's legal custodian including the department of children and families or the child's foster home;

[ Clause (i) of the third paragraph as amended by 2012, 240, Sec. 27 effective November 5, 2012. For text effective until November 5, 2012, see above.]

  (i) to one of the child's parents, or to the child's guardian or other responsible person known to the child, or to the child's legal custodian including the department of children and families or the child's foster home upon the written promise, without surety, of the person to whose custody the child is released that such parent, guardian, person or custodian will bring the child to the court on the next court date;

[ Clause (ii) of the third paragraph effective until November 5, 2012. For text effective November 5, 2012, see below.]

  (ii) to a temporary shelter facility licensed or approved by the department of early education and care, a shelter home approved by a temporary shelter facility licensed or approved by said department of early education and care, or a family foster care home approved by a placement agency licensed or approved by said department of early education and care; provided, however, that such a placement is available and, in the view of the probation officer, appropriate for the child; provided, further, that such a placement furnish said law enforcement officer with a written statement that it will make reasonable efforts to secure the child's appearance at the next available court session and that such placement will furnish the necessary transportation to such placement and to the court, unless the law enforcement officer chooses to furnish said transportation, provided, further, that such child may not be securely detained in a police station or town lockup.

[ Clause (ii) of the third paragraph as amended by 2012, 240, Sec. 28 effective November 5, 2012. For text effective until November 5, 2012, see above.]

  (ii) forthwith and with all reasonable speed take the child directly and without first being taken to the police station house, to a temporary shelter facility licensed or approved by the department of early education and care, a shelter home approved by a temporary shelter facility licensed or approved by said department of early education and care or a family foster care home approved by a placement agency licensed or approved by said department of early education and care; or

[ Clause (iii) of the third paragraph added by 2012, 240, Sec. 28 effective November 5, 2012.]

  (iii) take the child directly to the juvenile court in which the act providing the reason to take the child into custodial protection occurred if the officer affirms on the record that the officer attempted to exercise the options identified in clauses (i) and (ii), was unable to exercise these options and the reasons for such inability.

[ Paragraph inserted following the third paragraph by 2012, 240, Sec. 28 effective November 5, 2012.]

  A child in custodial protection may not be confined in shackles or similar restraints or in a court lockup facility in connection with any proceedings under sections 39E to 39I, inclusive. A child who is the subject of an application for assistance shall not be placed in a locked facility or a facility designated or operated for juveniles who are alleged to be delinquent or who have been adjudicated delinquent. Such child may, however, be placed in a facility which operates as a group home to provide therapeutic care for juveniles, regardless of whether juveniles adjudicated delinquent are also provided care in such facility.

[ Fourth paragraph effective until November 5, 2012. For text effective November 5, 2012, see below.]

  Notwithstanding the foregoing requirements for placement, any such child who is arrested shall, if necessary, be taken to a medical facility for treatment or observation.

[ Fourth paragraph as amended by 2012, 240, Sec. 29 effective November 5, 2012. For text effective until November 5, 2012, see above.]

  Notwithstanding the foregoing requirements for placement, any such child who is taken into custodial protection shall, if necessary, be taken to a medical facility for treatment or observation.

[ Fifth paragraph effective until November 5, 2012. For text effective November 5, 2012, see below.]

  If the court finds that a child alleged to be a child in need of services by reason of persistently refusing to obey the lawful and reasonable commands of his parents or legal guardian is likely not to appear at the preliminary inquiry or at the hearing on the merits, the court shall order the child to be admitted to such bail or to be released upon such terms and conditions as it determines to be reasonable. A child who does not post bail and is not otherwise released may be detained under such terms and conditions as the court may impose in a facility operated by or under contract with the department for the care of juveniles, provided that no such child is so detained for more than fifteen days without being brought again before the court for a hearing on whether such detention should be continued for another fifteen day period. If the court decides to so continue said detention, it shall note in writing the detailed reasons for its decision. Any child aggrieved by such decision shall have an immediate right to appeal to the superior court under the procedures set forth in section fifty-eight of chapter two hundred and seventy-six; provided further, however, that in no event shall any child be detained under this section for more than forty-five days. If a child fails without good cause to respond to a summons, the court may similarly admit the child to bail, or release the child upon conditions set by the court, or, if the child fails to post bail, and is not otherwise released, detain the child subject to the above limitations. Whenever bail is imposed under this section, the provisions of section fifty-eight of chapter two hundred and seventy-six shall be applicable.

[ Fifth paragraph as amended by 2012, 240, Sec. 30 effective November 5, 2012. For text effective until November 5, 2012, see above.]

  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 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. The court shall not order the child to be placed in the custody of the department of youth services. Prior to the court granting temporary custody to the department of children and families, the court shall make a written certification and determination that it is contrary to the best interests of the child for the child to be in the child's home or current placement and that the department of children and families has made reasonable efforts to prevent removal of the child from the child's home or the existing circumstances indicate that there is an immediate risk of harm or neglect which precludes the provision of preventative services as an alternative to removal. An order placing a child with the department under this section shall be valid for not more than 15 days upon which the child and the child's parents, legal guardians or custodians, represented by counsel, shall be brought again before the court for a hearing on whether such order should be continued for another 15 day period based on the preponderance of the evidence. If the court decides to continue said order, it shall note in writing the detailed reasons for its decision; provided, however that no child shall be placed with the department under this section for more than 45 days.