Section 39E: Petitions seeking determination that child is in need of services; jurisdiction; standing
Section 39E. The divisions of the juvenile court department may receive and hear requests for assistance stating that there is a child requiring assistance or a family requiring assistance as defined in section twenty-one, in accordance with the provisions of this section and of sections thirty-nine F to thirty-nine I, inclusive. Proceedings pursuant to sections thirty-nine E to thirty-nine I, inclusive, shall not be deemed criminal proceedings and any record of these proceedings, including the filing of an application for assistance and creation of a docket, shall not be entered in the criminal offender record information system. Notwithstanding any general or special law to the contrary, no record pertaining to the child involved in the proceedings shall be maintained or remain active after the application for assistance is dismissed. The identity and record of any child for which an application for assistance is filed shall not be submitted to the department of criminal justice information services, criminal offender record information system, court activity record index or any other criminal record information system. Proceedings under sections 39E to 39I, inclusive, shall be confidential and not open to the public.. The jurisdiction of the Boston juvenile court for the subject matter of this section shall extend to the territorial limits of Suffolk county.
A parent, legal guardian, or custodian of a child having custody of such child, may initiate an application for assistance in one of said courts stating that said child repeatedly runs away from the home of said parent or guardian or repeatedly refuses to obey the lawful and reasonable commands of said parent or guardian resulting in said parent's or guardian's inability to adequately care for and protect said child.
A school district may initiate an application for assistance in said court stating that said child is not excused from attendance in accordance with the lawful and reasonable regulations of such child's school, has willfully failed to attend school for more than 8 school days in a quarter or repeatedly fails to obey the lawful and reasonable regulations of the child's school. The application for assistance shall also 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; and if the application for assistance states that a child has repeatedly failed to obey the lawful and reasonable regulations of the school, a statement of the specific steps taken by the school to improve the child's conduct.
When an application for assistance is presented to the clerk for filing, the clerk shall inform the petitioner that the petitioner may delay filing the request and choose to have the child and the child's family referred to a family resource center, community-based services program or other entity designated by the secretary of health and human services to provide community-based services in the juvenile court district where the child resides and return to court at a later time to file an application for assistance, if needed. The clerk shall prepare, publish and disseminate to each petitioner educational material relative to available family resource centers, community-based services programs and other entities designated by the secretary of health and human services. If the petitioner is a parent, legal guardian or custodian the clerk shall provide to the petitioner informational materials, prepared by the court that explain the court process and shall include the types of orders that the court may issue and the possibility of changes in the custody of the child and may include an explanation of the services available through the court process, including language translation services and the manner in which those services are delivered.
Whenever an application for assistance is initiated, the clerk shall set a date for a hearing as soon as possible, but not later than 15 days after the request is presented to the clerk for filing, to determine whether assistance is needed, shall notify the child of such hearing and shall request the chief probation officer or a designee to conduct an immediate inquiry to determine whether in the officer's opinion the best interest of the child require that assistance be given. The court shall hold a hearing in which it shall receive the recommendation of the probation officer and shall either (i) decline to accept the application for assistance because there is no probable cause to believe that the child and family are in need of assistance; (ii) decline to accept the application for assistance because it finds that the interests of the child would best be served by informal assistance, in which case the court shall, with the consent of the child and the child's parents or guardian, refer the child to a probation officer for assistance; or (iii) accept the application for assistance and schedule a fact-finding hearing. If the child is brought in on custodial protection, the court shall accept an application for assistance unless one has already been filed, and the court shall immediately request the probation officer promptly to make like inquiry and thereafter report to the court the probation officer's recommendation as to whether the interests of the child can best be served by informal assistance without a fact-finding hearing. Upon receiving such recommendation, the court may hold a hearing and shall decide whether to proceed with a fact-finding hearing or to refer the child to the care of a probation officer for assistance.
When an application for assistance is dismissed under this section, the court shall enter an order directing expungement of any records of the request and related proceedings maintained by the clerk, the court, the department of criminal justice information services, the court activity record index and the probation department that directly pertain to the application for assistance.
Whenever a child is referred to a probation officer for assistance, such officer may: refer the child to an appropriate public or private organization or person for psychiatric, psychological, educational, occupational, medical, dental or social services; and may conduct conferences with the child and the child's family to effect adjustments or agreements which are calculated to resolve the situation which formed the basis of the application for assistance and which will eliminate the need for a fact finding hearing. During the pendency of such referrals or conferences, neither the child nor the child's parents may be compelled to appear at any conferences, produce any papers or visit any place. However, if the child or the child's parents fail to participate in good faith in the referrals or conferences arranged by the probation officer, the probation officer shall so certify in writing, and the clerk shall accept the application for assistance if one has not already been accepted and shall set a date for a fact finding hearing. The judge who conducted the hearing on the acceptance of the application for assistance shall not preside at any subsequent hearing. Conferences and referrals arranged under this section may extend for a period not to exceed 90 days from the date that the application for assistance was initially filed, unless the parent and child voluntarily agree in writing to a continuation of such conferences or referrals for an additional period not to exceed 90 days from the expiration of the original period. Upon the expiration of the initial 90 day period, or of such additional 90 day period, the application for assistance, if any, shall be dismissed and the child and his parents discharged from any further obligation to participate in such conferences and referrals, or an application for assistance shall, if not already accepted, be accepted and a date set for a fact-finding hearing. No statements made by a child or by any other person during the period of inquiries, conferences or referrals may be used against the child at any subsequent hearing to determine that the child requires assistance, but such statements may be received by the court after the fact finding hearing for the purpose of disposition.
The commissioner of probation shall establish a system to collect data on all requests for assistance made and how they are resolved under sections 39E to 39I, inclusive. Said system shall maintain the privacy of clients served, assist the court in addressing the needs of the population to be served and collect information related to: the racial and ethnic identity of the child; the insurance status and coverage of clients served; the length of time a child is receiving assistance from a probation officer, including the time prior to and subsequent to the filing of an application for assistance; the identity of any public or private organization to whom a probation officer has referred a child or family for services; and any other information that may assist the commissioner and the court in evaluating the availability and effectiveness of services for children who are the subjects of requests for assistance under this section. The probation officer shall gather information concerning each child and family referred to the officer including, but not limited to, insurance status and coverage and other information that may assist the commissioner of probation and the court in evaluating the availability and effectiveness of services for children who are the subjects of requests for assistance under this section.
Upon the filing of an application for assistance under this section, the court may issue a summons, to which a copy of the application for assistance shall be attached, requiring the child named in such application to appear before said court at the time set forth in the summons. 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. Notice of the hearing shall be given to the department of children and families and the department of youth services.
Where the court summons such child, the court shall in addition issue a summons to both parents of the child, if both parents are known to reside in the commonwealth, or to one parent if only one is known to reside within the commonwealth, or, if there is no parent residing in the commonwealth, then to the parent having custody or to the lawful guardian of such child. Said summons shall require the person served to appear at a time and place stated therein at a hearing to determine whether or not such child is in need of assistance.
Unless service of the summons required by this section is waived in writing, such summons shall be served by the constable or police officer, either by delivering it personally to the person to whom addressed, or by leaving it with a person of proper age to receive the same, at the place of residence or business of such person, and said constable or police officer shall immediately make return to the court of the time and manner of service.