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.

Something Else Schools Can't Do -- Teach

About sex that is.

According to a District Attorney in Juneau County, Wisconsin, if teachers follow their state's new sex education law they risk being prosecuted for "misdemeanor or felony delinquency of a minor, with maximum punishments ranging from nine months in jail to six years in prison."

He suggested in his letter to school districts that someone instructing students under 16 in the use of contraceptives is punishable because "the 'natural and probable consequences' of the teacher's instruction is to cause that child to engage in sexual intercourse with a child".

Read the rest of the article here.

So, apparently, this DA thinks it is a criminal act to even cause a kid to think about sex. And that is regardless of whether what is taught actually causes sex or is designed for the purpose of protecting students from some of the consequences of their youthful indiscretions.

SJC strikes down Lowell youth curfew

SJC strikes down Lowell youth curfew - Local News Updates - The Boston Globe

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The case is COMMONWEALTH vs. WESTON W., a juvenile (and a companion case), SJC-10299, decided September 25, 2009.

Justice Cordy's decision noted:

We reject the rationale used by some courts to justify a lower standard of review, that the rights of minors are not coextensive with or are weaker than those afforded adults. Minors possess fully formed constitutional rights. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) ( "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority"). However, in applying the strict scrutiny test to their infringement, we recognize that the government has a countervailing compelling interest in "protect[ing] children from actual or potential harm," Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003), an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults. See Bellotti v. Baird, supra at 634 (constitutional principles should be applied with "flexibility" to minors because minors are vulnerable and unable to make decisions in "informed, mature manner"); Matter of Gail, 417 Mass. 321, 326-327 (1994), quoting Custody of a Minor, 375 Mass. 733, 754 (1978) (Commonwealth has "long-standing interest in protecting the welfare of children living within its borders"). In other words, the analysis "should consider whether the state's interests may be more compelling but not whether the rights involved are less fundamental." Nunez, supra at 945, citing H.L. v. Matheson, 450 U.S. 398, 441 n. 32 (1981) (Marshall, J., dissenting). See also Qutb, supra at 492 n. 6.

And then concluded:

Applying the strict scrutiny standard, the ordinance's criminal provision unconstitutionally infringes on the minors' rights to freedom of movement. Status offenses such as being abroad at night may not be "bootstrapped" into criminal delinquency and commitment to DYS custody. See Commonwealth v. Florence F., supra at 528-529 n. 8. In response to the first reported question [Does the Lowell Youth Protection Curfew for Minors violate the equal protection rights of the Juveniles under either the United States Constitution or the Massachusetts Declaration of Rights by subjecting the Juveniles to a restriction upon their rights to movement and travel that persons seventeen and older do not have to endure?], the answer is, "Yes," with regard to criminal penalties resulting from violations of the ordinance. The curfew itself and its civil enforcement mechanism, however, represent, as of the date of the proceedings below, a permissible, narrowly tailored response to Lowell's compelling interest in preventing crime by, and against, minors. Because the ordinance contains a severability clause, those provisions remain in force.