Section 54A: Delinquent children; diversion of child to program of community supervision or other rehabilitative services; assessment of suitability for diversion; determination of eligibility; diversion of child by district attorney; subsequent offense during stay of proceedings; effect of successful completion of diversion; ineligibility of diversion for child indicted as youthful offender or charged with violation of certain offenses
Section 54A. (a) A juvenile court shall have jurisdiction to divert from further court processing a child who is subject to the jurisdiction of the juvenile court as the result of an application for complaint brought pursuant to section 54. The court may divert a child to a program as defined in section 1 of chapter 276A.
(b) A child complained of as a delinquent child may, upon the request of the child, undergo an assessment prior to arraignment to enable the judge to consider the suitability of the child for diversion. If a child chooses to request a continuance for the purpose of such an assessment, the child shall notify the judge prior to arraignment. Upon receipt of such notification, the judge may grant a 14–day continuance. The department of probation may conduct such assessment prior to arraignment to assist the judge in making that decision. If the judge determines it is appropriate, a determination of eligibility by the personnel of a program may substitute for an assessment. If a case is continued pursuant to this subsection, the child shall not be arraigned and an entry shall not be made into the criminal offender record information system until a judge issues an order to resume the ordinary processing of a delinquency proceeding. A judge may order diversion without first ordering an assessment in any case in which the court finds that sufficient information is available without an assessment.
(c)(1) After the completion of the assessment, the probation officer or, where applicable, the director of a program to which the child has been referred shall submit to the court and to the counsel for the child a recommendation as to whether the child would benefit from diversion.
Upon receipt of the recommendation, the judge shall provide an opportunity for both the commonwealth and counsel for the child to be heard regarding diversion of the child. The judge shall then make a final determination as to the eligibility of the child for diversion. The proceedings of a child who is found eligible for diversion shall be stayed for 90 days unless the judge determines that the interest of justice would best be served by a lesser period of time or unless extended under subsection (f).
(2) A stay of proceedings shall not be granted under this section unless the child consents in writing to the terms and conditions of the stay of proceedings and knowingly executes a waiver of the child's right to a speedy trial on a form approved by the chief justice of the juvenile court department. Consent shall be given only upon the advice of counsel.
(3) The following shall not be admissible against the child in any proceedings: (i) a request for assessment; (ii) a decision by the child not to enter a program; (iii) a determination by probation or by a program that the child would not benefit from diversion; and (iv) any statement made by the child or the child's family during the course of assessment. Any consent by a child to a stay of proceedings or any act done or statement made in fulfillment of the terms and conditions of a stay of proceedings shall not be admissible as an admission, implied or otherwise, against the child if the stay of proceedings was terminated and proceedings were resumed on the original complaint. A statement or other disclosure or a record thereof made by a child during the course of assessment or during the stay of proceedings shall not be disclosed at any time to a commonwealth or other law enforcement officer in connection with the investigation or prosecution of any charges against the child or a codefendant.
(4) If a child is found eligible for diversion pursuant to this section, the child shall not be arraigned and an entry shall not be made into the criminal offender record information system unless a judge issues an order to resume the ordinary processing of a delinquency proceeding. If a child is found eligible pursuant to this section, the eligibility shall not be considered an issuance of a criminal complaint for the purposes of section 37H1/2 of chapter 71.
(d) A district attorney may divert any child for whom there is probable cause to issue a complaint, either before or after the assessment procedure set forth in subsection (b), with or without the permission of the court and without regard to the limitations in subsection (g). A district attorney who diverts a case pursuant to this subsection may request a report from a program regarding the child's status in and completion of the program.
(e) If during the stay of proceedings a child is charged with a subsequent offense, a judge in the court that entered the stay of proceedings may issue such process as is necessary to bring the child before the court. When the child is brought before the court, the judge shall afford the child an opportunity to be heard. If the judge finds probable cause to believe that the child has committed a subsequent offense, the judge may order that the stay of proceedings be terminated and that the commonwealth be permitted to proceed on the original complaint as provided by law.
(f)(1) Upon the expiration of the initial 90–day stay of proceedings, the probation officer or the program director shall submit to the court a report indicating the successful completion of diversion by the child or recommending an extension of the stay of proceedings for not more than an additional 90 days so that the child may complete the diversion program successfully.
(2) If the probation officer or the program director indicates the successful completion of diversion by a child, the judge may dismiss the original complaint pending against the child. If the report recommends an extension of the stay of proceedings, the judge may, on the basis of the report and any other relevant evidence, take such action as the judge deems appropriate, including the dismissal of the complaint, the granting of an extension of the stay of proceedings or the resumption of proceedings.
(3) If the conditions of diversion have not been met, the child's attorney shall be notified prior to the termination of the child from diversion and the judge may grant an extension to the stay of proceedings if the child provides good cause for failing to comply with the conditions of diversion.
(4) If the judge dismisses a complaint under this subsection, the court shall, unless the child objects, enter an order directing expungement of any records of the complaint and related proceedings maintained by the clerk, the court, the department of criminal justice information services and the court activity record index.
(g) A child otherwise eligible for diversion pursuant to this section shall not be eligible for diversion if the child is indicted as a youthful offender or if the child is charged with a violation of 1 or more of the offenses enumerated in the second sentence of section 70C of chapter 277, other than the offenses in subsection (a) of section 13A of chapter 265 and sections 13A and 13C of chapter 268, or if the defendant is charged with an offense for which a penalty of incarceration greater than 5 years may be imposed or for which there is a minimum term penalty of incarceration or which may not be continued without a finding or placed on file. Diversion of juvenile court charges under this chapter shall not preclude a subsequent indictment on the same charges in superior court.