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The 192nd General Court of the Commonwealth of Massachusetts

Section 39H: Custodial protection of child; notification and placement; bail; detention; right of appeal

Section 39H. 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.

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:

(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;

(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

(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.

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.

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.

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.