Voice of the Judiciary
By Judge Dana Gershengorn
Until recently, 8,000 Massachusetts families with children who were not attending school, who were not responding to parental guidance, or who were struggling with mental health issues, domestic violence or other problems, were routed through the court system each year through the filing of a Child in Need Of Services (CHINS) petition. That system, established in 1973, has now been changed to incorporate what we have since learned about how to help troubled children and families, and how best to achieve the original CHINS goal of preventing children from ever becoming involved in the juvenile justice system. On November 1, 2012, St. 2012, c. 240, titled “An Act Regarding Families and Children Engaged in Services” took effect. This statute amended G.L. c. 119 section 39E-J, (the CHINS statute). The new statute, referred to as the “Child Requiring Assistance” statute (“CRA”), made significant changes to the CHINS law, and is a legislative effort to address some of the most difficult cases handled by the Juvenile Court.
The Juvenile Court typically handles three types of cases: Care and Protection, Delinquency/Criminal, and CRA. Of those, it may be surprising to some that CRA cases can be the most difficult and complex to address. Certainly Care and Protection cases, which focus on the abuse and neglect of very young children, can be horrific. And delinquency cases, which range from the relatively minor (shoplifting) to the extremely dangerous (rape and manslaughter), pose all the legal challenges commonly associated with adult misdemeanor or felony cases. But CRA cases – where a parent comes before the court pleading for help with a high risk, potentially dangerous child, or a school seeks help getting a child to attend or to stop disrupting the school in a way that prevents other students from learning, are truly unique in their confluence of complex mental health issues, substance abuse concerns, and family dynamics.
The CRA legislation contains several changes to the prior CHINS procedure that are intended to limit the exposure of CRA youth to the court system. For example, section 39E provides that when a parent files for assistance with the court, the clerk’s office must give the parent a list of service providers in the area – compiled by the Massachusetts Department of Health and Human Services - who can offer direct services (individual counseling, family counseling, substance abuse, mentoring) to the family without court involvement. Unfortunately this section, arguably the most important in the statute, is presently unfunded, with an effective date three years hence; an advisory board will make recommendations on how to fund this mandate.
The importance of the community-based service programs cannot be overstated. The Juvenile Court does not provide direct services to families, other than supervision by probation staff. In a CRA case, the Juvenile Court’s authority is largely limited to (1) probation monitoring and support (including providing contact information for community service providers) or (2) transferring custody of a child from a parent to the Department of Children and Families (“DCF”) if necessary to get services or placement. Beyond that authority, the Juvenile Court can play little direct role in resolving the underlying issues presented in a CRA case.
Other changes within the CRA also evidence the intent to limit the exposure of CRA youth to the courts. For example, CRA cases can be open with the court for only 390 days post adjudication, whereas in prior CHINS cases there was no time limit and cases would routinely last several years. The CRA statute removes CRA records from a child’s CORI, and it also prohibits the restraint or temporary detention of CRA youth who are taken into protective custody either with or without a warrant. No doubt some of these changes, while well-intentioned, pose challenges for the court. For example, when a run-away child is brought into court on a warrant, there is now no mechanism to keep that child at the court until the child’s parent arrives. An unintended result of removing any form of temporary hold is that run-away adolescents can, and do, simply run back out the door of the courthouse before the parent arrives, leaving the Juvenile Court with no statutory authority to prevent this dangerous behavior. Other concerns include the elimination of “diversion panels” which some courts formerly used to screen CHINS cases away from court before a child ever appeared before a judge. This change now allows a petitioner/parent in a CRA case immediate access to a hearing before a judge, after which the court can refer the case to the Probation Department for “informal assistance.” The change provides a parent with access to a judge within 15 days, but it also removes some effective diversion services that existed under the CHINS statute.
Whatever its unintended flaws, the CRA is a laudable attempt to destigmatize CRA youth by removing them from traditional court procedures, and to place the emphasis in these cases on the people most important to resolving the problem: direct service providers.
But despite legislative intent to divert CRA cases from the judicial system, more and more such cases are filed every month. Why? In part, because juvenile counsel in delinquency cases may see a CRA case as a way to avoid having their clients committed to the Department of Youth Services (“DYS”). A juvenile delinquent client headed to DYS on a delinquency charge might be able to avoid such a fate if counsel can get the court to “commit” the child to DCF custody with an out-of-home placement (a DCF group home bed or a foster home) on a quickly brought CRA petition instead. The desire to use the CRA statute this way is understandable – ample evidence exists of the negative impact of DYS commitment on a youth. However, using the CRA to circumvent DYS commitment can be problematic. In some cases the structure of DYS and its accompanying services can be a positive – and necessary – influence on a troubled youth. DYS services include education, counseling, employment services and continued support to a juvenile and his/her family from release until the juvenile turns eighteen. Using the CRA to avoid DYS commitment also begs the question of how best to allocate DCF’s limited placement resources, and who should be making those allocation decisions. The appellate courts have noted that agencies are in the best position to properly allocate their resources. Every time a court places a child into DCF custody and orders an out-of-home placement, the court is impacting the agency’s discretion to allocate its limited resources; such decisions should not be taken lightly.
Another reason for the increase in filings is the increase in children with significant mental health trauma who are not receiving necessary services from the Department of Mental Health (“DMH”). Until mentally ill children have greater access to necessary services from DMH – an agency that has seen millions of dollars stripped from its child and adolescent mental health services due to the economy – CRA filings will continue to rise, as parents struggle to find the necessary services for those children.
Appearing before a Juvenile Court judge should be the last resort to obtain services for children. While the Juvenile Court is experienced in working with youth and adolescents, judges are not themselves service providers. Bringing a child before a judge for any type of adversarial proceeding should be undertaken cautiously, and only when absolutely necessary for the child’s and family’s safety. An ideal system is one in which families are first guided to effective community-based services and other appropriate providers, and appear before a judge only when parents have been forced to conclude that a change of custody is needed. If the full potential of the CRA is realized, it could be an important step in that direction.
Dana Gershengorn is an Associate Justice of the Massachusetts Juvenile Court. She presides over criminal and civil cases involving juvenile delinquency, Children Requiring Assistance, and child abuse and neglect. Judge Gershengorn is a graduate of the University of Pennsylvania Law School and the University of Michigan.
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