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 petitions seeking a determination that a child is in need of services 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. 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 or legal guardian of a child having custody of such child, or a police officer may apply for a petition in one of said courts alleging that said child persistently runs away from the home of said parent or guardian or persistently 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.
Any supervisor of attendance, duly appointed pursuant to section nineteen of chapter seventy-six may apply for a petition in said court alleging that said child persistently and wilfully fails to attend school or persistently violates the lawful and reasonable regulations of his school.
If the child is not brought into court on arrest, the clerk shall set a date for a hearing to determine whether a petition should issue, shall notify the child of such hearing and shall request the chief probation officer or his designee to conduct a preliminary inquiry to determine whether in his opinion the best interests of the child require that a petition be issued. The court shall hold a hearing in which it shall receive the recommendation of the probation officer and shall either (i) decline to issue the petition because there is no probable cause to believe that the child is in need of services; (ii) decline to issue the petition because it finds that the interests of the child would best be served by informal assistance without a trial on the merits, in which case the court shall, with the consent of the child and his parents or guardian, refer the child to a probation officer for assistance; or (iii) issue the petition and schedule a trial on the merits. If the child is brought in on arrest, the petition shall issue if it has not already issued, and the court shall immediately request the probation officer promptly to make like inquiry and thereafter report to the court his recommendation as to whether the interests of the child can best be served by informal assistance without a trial on the merits. Upon receiving such recommendation, the court may hold a hearing and shall decide whether to proceed with a trial on the merits or to refer the child to the care of a probation officer for assistance.
Whenever a child is referred to a probation officer for assistance, such officer shall have the authority to refer the child to an appropriate public or private organization or person for psychiatric, psychological, educational, occupational, medical, dental or social services and shall have the authority to conduct conferences with the child and the child’s family for the purpose of effecting adjustments or agreements which are calculated to resolve the situation which formed the basis of the application or petition and which will eliminate the need for a judicial trial on the merits. During the pendency of such referrals or conferences, neither the child nor his parents may be compelled to appear at any conferences, produce any papers, or visit any place. However, if the child or his 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 issue a petition, if one has not already been issued, and shall set a date for a trial on the merits. The judge who conducted the hearing on the issuance of a petition shall not preside at any subsequent hearing on the merits. If the child is being detained in any facility pending the determination as to whether a petition shall issue, or pending a trial on the merits, and a determination is made either not to issue the petition or to refer the child to the probation officer, the person in charge of the facility wherein the child is detained shall be notified immediately and the child shall be immediately released. Conferences and referrals arranged under this section may extend for a period not to exceed six months from the date that the application was initially made for the petition, unless the parent and child voluntarily agree in writing to a continuation of such conferences or referrals for an additional period not to exceed six months from the expiration of the original period. Upon the expiration of the initial six-month period, or of such additional six-month period, the petition, if any, shall be dismissed and the child and his parents discharged from any further obligation to participate in such conferences and referrals, or a petition shall, if not already issued, be issued and a date set for a trial on the merits. 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 for the purpose of adjudicating him a child in need of services, but such statements may be received by the court after adjudication for the purpose of disposition.
Upon the filing of a petition under this section, the court may issue a summons, to which a copy of the petition shall be attached, requiring the child named in such petition to appear before said court at the time named therein. 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 youth services and to the department of children and families.
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 services.
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.
The hearing of a petition filed under section thirty-nine E in a division of the district court department or of the juvenile court department shall be by a jury of six, unless the child files a written waiver and consent to the petition being heard without a jury, subject to his right of appeal therefrom for trial by a jury of six pursuant to section thirty-nine I. Such waiver shall not be received unless the child is represented by counsel or has filed, through his parent or guardian, a written waiver of counsel. Such trials by jury in the first instance shall be in jury sessions designated for their respective departments by the administrative justices of the district and juvenile courts for the hearing of appeals claimed pursuant to section thirty-nine I. All provisions of law and rules of court relative to the hearing and trial of such appeals shall apply also to jury trials in the first instance.