10 Things You Should Know About CHINS

1. There is no such animal anymore.

On November 5, 2012, a new law went into effect that revamped CHINS and did away with that term. The new law was supposed to be called FACES (Families and Children Engaging in Services) but is instead going to be known as CRA (Children Requiring Assistance). Read AN ACT REGARDING FAMILIES AND CHILDREN ENGAGED IN SERVICES here: Session Laws Acts 2012 Chapter240.

2. Definitions changed.

The new statute applies to children between the ages of 6 and 18. The old law only went up to 17. Since the mandatory school attendance law only requires school attendance until age 16, school-based applications must still be dismissed when the student reaches age 16.

A Runaway is a child between the ages of 6 and 18 who repeatedly runs away from the home of a parent, legal guardian or custodian.

The other home-based category makes clear that the rules violations to trigger an application must be important ones. An application may be filed for a child between the ages of 6 and 18 who repeatedly fails to obey the lawful and reasonable commands of a parent, legal guardian or custodian, thereby interfering with their ability to care for and protect the child.

A Truant is a child who when not otherwise excused from attendance in accordance with lawful and reasonable school regulations, willfully fails to attend school more that eight school days in a quarter.

The other school-based application is for a child who repeatedly fails to obey lawful and reasonable school regulations.

3. Police officers may no longer file applications.

Mass. General Laws chapter 119 § 39E (which will be here: www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter119/Section39E but has not yet been updated with the new statute) lists those who may file an application for assistance as "A parent, legal guardian, or custodian of a child having custody of such child." Custodian and having custody are additions to the statute. Practitioners question if "having custody" applies to a parent. Some courts were not letting non-custodial parents file under the old CHINS law.

Police officers are no longer listed in those who may file. The new statute no longer requires a certified supervisor of attendance to file school-based applications. Applications may be filed by a school district. Practitioners question whether that means a school district employee or if a school district may only be represented by an attorney.

4. The bail provisions of the old CHINS law were eliminated.

There is no reference to bail in the new CRA law. The court may place the child in the temporary custody of DCF but the order is only good for 15 days at a time and may only be renewed twice for a total of 45 days.

5. Arrest is no longer allowed.

If a child fails to obey a CRA summons or the a police officer has probably cause to believe a child is a runaway AND will not respond to a summons, s/he may be taken into custodial protection.

BUT custodial protection does not allow police to bring child to the police station or a lockup (not even the juvenile court detention facility) and cannot be handcuffed or shackled.

Court orders for to bring a child to court for failure to obey a summons are not to be entered into the state's Warrant Management System (WMS).

6. CRA cases are not be placed on CORI, CARI, BOP or WMS.

The cases are not to be entered on the child's Criminal Offender Record Information, Court Appearance Record Information, Board of Probation record or Warrant Management System. If the application is dismissed before a fact-finding hearing it is supposed to be expunged. No record "shall be maintained or remain active" after the case is dismissed.

7. Parent applicants may now dismiss their petitions.

Overturning the In re Gail, 471 Mass. 321 (1994) case, which said that the petitioner-mother could not dismiss her CHINS petition, the new CRA law authorizes any party to file a motion to dismiss until the disposition hearing. The judge "may" order dismissal if it is in the best interests of the child or if all parties agree.

8. No more jury trials.

The new statute specifies that the fact-finding hearing is before a judge, not a jury. When the legislature did away with trial de novo in every other area of law, it left it in the old CHINS statute. The new CRA law does away with the child's ability to have a second trial in a jury session. Instead appeals are no longer whole new trials but will be decided on issues of law in the single justice session of the Mass. Appeals Court (under M.G.L. c. 231, § 118).

9. Disposition is a two-step process and is time-limited.

Under the new CRA law the court must convene and may participate in an on-the-record "conference" of the probation officer, petitioner, school, parent, child, child's attorney, DCF and "any other person who may be helpful in determining the most effective assistance available to be offered to the child and family." The probation officer must write recommendations and other persons may submit written recommendations to advise the court on appropriate treatment, services, placement, conditions and limitations.

The first disposition order may last for not more than 120 days. It may be extended after hearing for 90 days. A maximum of 3 extensions are allowed for a total of 390 days.

10. Links to resources.

The Massachusetts Juvenile Court Department issued a Handbook for Parents, Legal Guardians, and Custodians in Child Requiring Assistance Cases it is no longer available here, but can still be found by searching for it by title.

The Children and Family Law Program of the Committee for Public Counsel Services has compiled a set of links which includes the Juvenile Court Memorandum of October 25, 2012 and links that let you download "a detailed memorandum discussing the new law," "a short summary of the changes," and "the sections of Chapter 119 that pertain to status offenses, as it will read on November 5, 2012"; or go here to access the links from the CAFL News page.

Special thanks to Attorney Michael Kilkelly who prepared a lot of the CAFL materials and presented them in a series of workshops for interested attorneys.

When Schools' Zero-Tolerance Policies Make Zero Sense

High school student expelled for blowing pieces of paper at classmates through a tube pen. Read the full article from Legal Blog Watch here.

And Now Something that Schools Cannot Do to Kids

And Now Something that Schools Cannot Do to Kids - ridicule a child and have the school police escort her out of the room for refusing to stand for the Pledge of Allegiance.

But that appears to be just what happened to a 13 year old at the Roberto Clemente Middle School in Montgomery County, Virginia, last month. It happened despite it being settled law since 1943 that one cannot be forced to say the Pledge or participate in other patriotic exercises and despite the fact that the school handbook even says that kids cannot be disciplined for refusal to participate.

See the full story here.

Post comments below to ask me about other things that you want to know whether schools can do to kids and I'll consider a Ten Things list.

Another Thing Not to do to Your Child?

Don't let him wear long hair.

At least not if he goes to Floyd Elementary School in Mesquite, Texas.

Texas school board keeps ban on boy's long hair

and continues the in-school suspension for the pre-kindergartner. The article says:

The district is known for standing tough on its dress code. Last year, a seventh-grader was sent home for wearing black skinny pants.

Student Arrested For Classroom Texting

When you put cops in schools, school discipline issues become police issues.

According to the The Smoking Gun "A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct ..." Read the rest of the story, including the 5 page police report here.

See also SchooltoPrison.org "Challenging the School to Prison Pipeline".

Gender discrimination in sexual abuse cases?

On February 6, 2009, in the case of Commonwealth v. Bernardo B., a juvenile, the Massachusetts Supreme Judicial Court ordered the Plymouth County District Attorney to provide discovery to defense counsel so that the defendant might be able to make out a case of discriminatory selective enforcement of statutory rape laws against male juveniles.

Bernardo was the eldest (having "just entered his teens") and only male amongst a group of four playmates (the other three were females "on the cusp of their teenage years") who engaged in various kinds of sexual touching at Bernardo's request. Bernardo's father found a text on Bernardo's cell phone from one of the girls talking about a sex act she would have performed on him if one of the other girls had not been present. Mr. B. called the girl's mother with his concern. The girl's parents called the police. After investigation and sexual abuse interviews in which the girls described Bernardo "pressuring" them to touch him in various ways Bernardo was charged with delinquency for three counts of statutory rape, amongst other charges.

Bernardo's defense attorney tried to get the District Attorney to prosecute the girls for their sex acts on, the also under aged, Bernardo but the DA declined. Bernardo filed applications for criminal complaints against the girls but the Clerk-Magistrate declined to issue complaints.

Chief Justice Marshall, in a 3-2 decision, ruled that "[T]he single justice [who refused to vacate the juvenile court judge's order granting the defendant's discovery requests] did not abuse her discretion in declining to vacate the ruling of the motion judge that the boy has made a threshold showing based on credible evidence that he is entitled to discovery for the purpose of investigating and, if warranted, raising a claim of selective prosecution."

Press reports of the case imply that the SJC ruled that there was selective prosecution. The case really only says that the defendant has raised enough of a question about selective prosecution that he is entitled to force the DA to produce statistics that may help him show that he was discriminatorily prosecuted on the basis of being male. Once the information is provided, the defendant will still have a heavy burden to meet in attempting to overcome the presumption of validity granted to prosecutorial discretion.

Also of interest in the case was a brief history of statutory rape. Chief Justice Marshall wrote:

Statutory rape is an offense of ancient origins. "First codified into English law in 1275, statutory rape criminalized sexual relations with females under the age of twelve." Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L.Rev. 703, 754 (2000). The aim of this gender-specific statute was not the protection of young females but the protection of fathers' property interests in their young daughters, whose loss of virginity would severely depress the value of the dowry the father would receive on his daughter's marriage. Id. at 754-755. By the late Sixteenth Century, the aim of the law evolved to a statute designed to protect men from charges of illegal sex with young girls. The age of consent was lowered to ten years and so it stood when the American colonies, including Massachusetts, absorbed English common law and adopted the English law of statutory rape. General Laws of Massachusetts Colony at 15 (1672), reprinted in Colonial Laws of Massachusetts 1672-1686 (1887) ("whosoever he be shall commit or have Carnal Copulation with any such [woman] Childe under ten years old ... he shall be put to death"); Province Laws 1692-1693, c. 19, § 11 (capital offense for any man to "unlawfully and carnally know and abuse any woman child under the age of ten years"). See generally Note, No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape Laws, 16 J.L. & Pol'y 717, 725-726 (2008). In the late Nineteenth Century, in response to the widespread sexual exploitation of young girls in factories and urban centers, temperance organizations and other reform groups launched a nationwide effort to raise the age of consent. In Massachusetts, between 1886 and 1898, the age of consent rose from ten to thirteen, then fourteen, then sixteen years of age. See Commonwealth v. Hackett, 170 Mass. 194, 195-196 (1898) (summarizing statutory amendments to age of consent). As in Elizabethan times, however, only females could be the victims of statutory rape.

There have been more recent efforts to reform our American statutory rape law. Statute 1974, c. 474, § 3, struck the word "female" from G.L. c. 265, § 23. Compare St.1974, c. 474, § 3, with St.1966, c. 291. See also note 3, supra. As we noted in Commonwealth v. Hackett, 383 Mass. 888, 888 (1981): "In general, the 1974 amendment eliminated prior language which defined the victims of rape as female or female children. Instead, the victims are now defined as persons or children and the generic masculine pronoun is substituted throughout. Both males and females are protected from sexual assault by this same statute, which is neutral as to the gender of the victim. Nor does the statute define the various crimes with reference to the gender of the offender. The result is that the penalties for sexual intercourse and unnatural sexual intercourse are the same without regard to the gender of the victim."

Modern amendments leave no doubt about the Legislature's intent to protect all children under sixteen years old from sexual abuse. The statutory rape law, as well, makes clear that perpetrators of statutory rape may be either male or female. Statutory rape in Massachusetts is a strict liability felony. Only two elements are needed to support a conviction under G.L. c. 265, § 23: "(1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age." Commonwealth v. Miller, 385 Mass. 521, 522 (1982). See id. at 525 (noting that mistake as to age is not defense to statutory rape in Massachusetts). Force is not a necessary element of the crime. Moreover, conviction of statutory rape has weighty consequence beyond incarceration. Those convicted enter the Commonwealth's sex offender registry and are required to abide by all of the obligations and restrictions contained therein. See G.L. c. 6, §§ 178C-178Q.

It remains to be seen whether Bernardo will be able to make out his selective prosecution case and thereby get the complaint against him dismissed. His motion "to dismiss the statutory rape claim on the ground that the law was unconstitutional as applied to him ... remains undecided, [and was] not before [the SJC]. The decision noted also that "As a result of the arrest and charges, the boy has been suspended from school and removed from its football team. He is being tutored at home."

Alternatives for promoting school safety

Scholastic Adminstr@tor magazine (November / December 2008 edition) reported on restorative practices as a means of promoting school safety and an alternative to zero tolerance policies.

The Talk It Out Solution
How can you promote safety? Try getting rid of the metal detectors.
By Caralee Adams | November/December 2008

What makes for a safe school? Security guards patrolling the hallways? Metal detectors? Zero-tolerance policies? The answer may be none of the above: Educators are searching for new solutions to achieving harmony in the classroom and, surprisingly, they’re increasingly holistic. “There aren’t enough bars, metal detectors, or police to make a school safe if there is a culture of violence in a school,” says Ted Wachtel, founder of the International Institute for Restorative Practices (IIRP) in Bethlehem, Pennsylvania. “You need to strike at the heart of the culture.”

Trying restorative practices
One safer schools initiative making its way across the nation is the implementation of “restorative practices.” Rather than meting out punishments, restorative practices employs a talk-it-out approach to foster dialogue between aggrieved students. Students are taught basic social skills to problem-solve and lower the tension in schools. One premise of the strategy is that kids feel safe when there is cooperation instead of hostility; another is that kids who feel valued and connected at school are less likely to act out. Many administrators around the country are investing in restorative practices programs to build a healthy school climate in hopes of fending off violence and improving academic performance.

Restorative practices places responsibility on the students themselves rather than relying on zero tolerance and authoritarian control from above. It uses a collaborative response to wrongdoing, which is intended to be supportive, not demeaning.

Read the rest of the article here.

Supreme Court to hear school strip search case

As reported here, the U.S. Supreme Court has agreed to hear Safford (AZ) Unified School District's appeal of the Ninth Circuit's reversal of the dismissal of Savana Redding's suit against it for strip searching her to look for ibuprofen when she was a 13-year-old honor student with no history of discipline issues at her middle school.

I hope SCOTUS isn't taking the case in order to overturn the Ninth Circuit. The July 11, 2008, Opinion of nine of the eleven appeals court judges who heard the case details the Constitutional basis for holding the school personnel responsible for their unreasonable violation of the privacy and person of the 13-year-old student.

The Ninth Circuit held that

[T]he public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

It would be a shame if parents had to worry more about schools abusing their children than the "evils" that Safford U.S.D.'s officials say they want to protect our children from.

Now they're suspending students for writing a list of names!

According to the Boston Globe:

High schoolers investigated
By Martin Finucane
Globe Staff / May 23, 2008

Two students at Silver Lake Regional High School are being kept out of school while police investigate whether lists the two students made of fellow students constitute a threat to the school community, the school district's superintendent said yesterday.

A teacher became concerned when she saw a male student throw away a piece of paper last Friday. She retrieved it and saw a list of four names. On Monday, a female student was found to be writing a list containing two names.

"At this point in time, we're taking it very seriously. . . . Frankly, we take any threat as a serious threat until it's sort of proved otherwise," said Superintendent John Tuffy, who would not describe what raised school officials' suspicions about the lists.

Tuffy said it was not clear if the two students were linked.

"That's being looked into right now. There are a number of questions that we all would like answers to," he said.

Kingston Police Chief Joseph Rebello did not immediately return a telephone message seeking comment.

Read it online here.

~~~

After attending "School Discipline, Juvenile Justice and the Realities of Race" sponsored by The Boston Lawyer Chapter of the American Constitution Society, the American Civil Liberties Union, the American Civil Liberties Union of Massachusetts, the Juvenile Justice Center at Suffolk University Law School and the Criminal Law Section of the Boston Bar Association at The Boston Public Library Tuesday night and being reminded of the School to Prison Pipeline, I couldn't help but be astounded at the evidence of overuse of zero tolerance policies that seems to be exhibited by the above article.

It amazes me what we criminalize these days and what our "authorities" want to "take seriously".