(a) Who may file
A parent, legal guardian, or custodian of a child having custody of the child, may file an application for assistance alleging that the child (1) repeatedly runs away from home of said parent, guardian, or custodian or (2) repeatedly refuses to obey the lawful and reasonable commands of said parent, guardian or custodian resulting in their inability to adequately care for and protect the child.
A school district may file an application for assistance alleging that the child (1) is
not excused from attendance in accordance with the lawful and reasonable regulations of such child’s school, (2) has willfully failed to attend school for more than 8 school days in a quarter or (3) repeatedly fails to obey the lawful and reasonable regulations of the child’s school. If the school district is alleging that the child is habitually truant, the school district's application shall state whether the school district has a truancy prevention program, whether the child and family have participated in the school's truancy prevention program, the specific steps taken to prevent the child's truancy if the child and family participated in the program, and the reasons for the child and family not participating in the program if one is available. If the school district is alleging that the child failed to obey the lawful and reasonable regulations of the school, the school district's application shall state the specific steps taken by the school to address the child's conduct.
A parent or police officer may file an application for assistance alleging that the child is a sexually exploited child.
The application for assistance shall be filed in the Juvenile Court with jurisdiction over where the child resides for an application filed by a parent, legal guardian or custodian or police officer and over the school district responsible for monitoring the child’s attendance for applications filed by a school district.
(c) Clerk-Magistrate referral
Prior to accepting the application for assistance, the clerk-magistrate or his designee shall inform the petitioner that the petitioner may delay filing the request and choose to have the child and the child’s family referred to a family resource center in the Juvenile Court division where the child resides and return to court at a later time to file an application for assistance.
(d) Scheduling of the preliminary hearing
The clerk shall schedule the preliminary hearing within 15 days of the filing of the application for assistance.
(1) Notification to child
If the child is not present at the time of the filing of the application for assistance, the clerk shall send a notice to the child regarding the preliminary hearing, together with a copy of the application.
(i) Summons to Child and Parent(s). The court may issue a summons requiring the child to appear at the preliminary hearing. The application for assistance shall be attached to the summons. If the child fails to appear in response to the summons, the court may issue a warrant. The warrant shall instruct the officer to whom it is directed to bring the child directly to the court. If the child is summonsed, the court shall also summons the child's parent(s) who reside in the Commonwealth.
(2) Appointment of counsel for the child
Counsel shall be appointed for the child at the time of the filing of the application for assistance. If the child is not present at the time of the filing of the application for assistance, the clerk shall notify counsel of the appointment in accordance with the procedures set forth in Supreme Judicial Court Rule 3:10, including the child’s name, and the date of the preliminary hearing. Counsel shall be responsible for contacting the child prior to the preliminary hearing.
(e) Probation inquiry
If the child is present at the time of the filing of the application for assistance, the clerk shall notify probation that an inquiry is necessary. The child shall meet with the chief probation officer or his designee for the purposes of conducting an inquiry.
Subsection (a). General Law c. 119, § 39H does not address whether a non-custodial parent may file an application. When a non-custodial parent files an application the recommended practice is for the clerk to accept the application and refer it for a probation inquiry. The clerk's office should provide notification of the preliminary hearing to the parent with custody of the child. At the preliminary hearing, the judge may review the application, and within his/her discretion, determine whether the allegations meet the requirements of a child requiring assistance even though the applicant is a non-custodial parent.
The school district shall be required to file using an application specifically for school districts approved by the Chief Justice of the Juvenile Court. Pursuant to G.L. c. 76, § 20, supervisors of school attendance may file applications alleging that the child is truant on behalf of the school district.
Subsection (c). General Law c. 119, § 39E requires the clerk-magistrate to inform a petitioner that they may delay the filing of the application and be referred to a family resource center for assistance. The statute also requires the clerk-magistrate to disseminate to each petitioner educational materials about the family resource centers and the court process, including the types of orders the court may issue and the services available to the child and family through the court. In addition to materials that may be available in each local court, every clerk-magistrate shall provide the Handbook for Parents, Legal Guardians, and Custodians in Child Requiring Assistance Cases, published by the Administrative Office of the Juvenile Court, and a pamphlet about the Massachusetts 211 system which helps to connect youth and families with resources in their communities.
Subsection (d)(1). In addition to notifying the child, it is recommended that the court send notification to a non-custodial parent, whose parental rights have not been terminated, if information is provided to the court regarding the non-custodial parent.
Subsection (d)(1)(i). The warrant issued in a child requiring assistance case is known as a warrant of custodial protection. A warrant of custodial protection, unlike an arrest warrant, is not entered into warrant management or any database run by the Department of Criminal Justice Information Systems (DCJIS). The recommended practice is for the court to fax a copy of the warrant to the police department in the municipality where the child lives, where the child attends school and any other police department in a municipality where the child may be located based on information provided by the petitioner. The statute requires that a summons issue prior to the issuance of a warrant, but there may be reasonable grounds in some circumstances to believe that the child will not appear in response to a summons and that any further delays would present an immediate danger to the physical and emotional well-being of the child. In these circumstances, the court may issue a warrant of custodial protection prior to the issuance of a summons.
The warrant of custodial protection may be issued for any type of child requiring assistance application. Therefore, if there is an open application alleging a child to be a child requiring assistance for any reason other than a runaway, the court may issue the warrant of custodial protection on the open case and does not need to create a new runaway application.
The warrant of custodial protection is valid until the child has been apprehended and brought to court. If the warrant is executed during court hours, the child shall be brought immediately before a judge. If the police take the child into custodial protection after court hours, the police shall follow the process provided for under G.L. c. 119, § 39H. The warrant of custodial protection shall be expunged once the child returns to court.
Subsection (e). The child is not always present at the time of the filing of the application. If the parent is present, probation will usually meet with the parent that day to conduct an initial inquiry to gather general information about the child and family. In some court locations, probation’s inquiry with the child may occur on the day of the preliminary hearing or may be scheduled a few days prior to the preliminary hearing. Counsel for the child should be present at probation’s inquiry of the child if counsel is available that day.