Millis Public Schools v. M.P. , 478 Mass. 767 ( 2018 )

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SJC-12384
MILLIS PUBLIC SCHOOLS vs. M.P. & others.1
Norfolk. October 2, 2017. - February 6, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Child Requiring Assistance. Statute, Construction. Words,
"Wilfully."
Petition filed in the Norfolk County Division of the
Juvenile Court Department on November 30, 2016.
The case was heard by Mary M. McCallum, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Katrina McCusker Rusteika, Committee for Public Counsel
Services, for M.P.
LENK, J. The children requiring assistance (CRA) statute,
G. L. c. 119, §§ 21, 39E-39I, confers jurisdiction upon the
Juvenile Court to intervene in the custody arrangements of
1
The mother and father of M.P.
2
children who are, inter alia, "habitually truant," meaning that
they "willfully fail[] to attend school for more than [eight]
school days in a quarter." G. L. c. 119, § 21. The statute is
aimed at children who exhibit "misbehavior which is not
violative of any criminal statute, but which is the cause for
concern that it is indicative of problems or tendencies that may
eventually lead to delinquent or criminal activity." R.L.
Ireland & P. Kilcoyne, Juvenile Law § 4.1 (2d ed. 2006 & Supp.
2017) (Ireland & Kilcoyne, Juvenile Law). In such cases, the
Juvenile Court is tasked with examining the children's
circumstances and determining whether changing or placing
conditions on their custody arrangements will help deter their
potentially harmful behaviors. Id. The party that initiates a
CRA proceeding must prove the allegations beyond a reasonable
doubt. G. L. c. 119, § 39G.
In this case, we decide whether a child, M.P., who has
failed continually to attend school due to a combination of
physical and mental disabilities, including a severe bladder
condition and autism, was properly adjudicated as a child
requiring assistance on the basis of a habitual truancy CRA
petition filed by the Millis public schools (school district).2
To make this determination, we must address the novel question
2
Millis public schools did not participate in this appeal.
3
of what it means for a child to "willfully fail[] to attend
school." In light of the CRA statute's goal of deterring
delinquency, the statutory requirement that a child's failure to
attend school be wilful reflects legislative concern as to why
the child is regularly skipping school: it contemplates
purposeful conduct by the child. The wilfulness requirement
thus necessitates judicial inquiry into and assessment of the
child's reasons for not attending school. When the child's
repeated failure to attend school arises from reasons portending
delinquent behavior, it is wilful under the statute. Using the
definition we set forth today, the evidence in the record does
not support a finding beyond a reasonable doubt that M.P.
"willfully fail[ed] to attend school."
1. Background. a. Statutory scheme. The Juvenile Court
has jurisdiction over three primary areas: delinquency and
youthful offender cases, care and protection matters, and CRA
proceedings. G. L. c. 119, §§ 26, 39E, 54. Children in CRA
proceedings often are said to have committed "status offenses,"
because the statute is "couched in terms of the child's
condition rather than in terms of the commission of specific
acts" (citation omitted). See Ireland & Kilcoyne, Juvenile Law,
supra at § 4.1. Unlike children who are adjudicated delinquent,
children requiring assistance have not committed wrongdoing
4
against another or against society, but, rather, are deemed to
be acting against their own interests. See id.
The CRA statute defines a child requiring assistance as one
who is between the ages of six and eighteen and who
"(i) repeatedly runs away from the home of the child's parent,
legal guardian or custodian; (ii) repeatedly fails to obey the
lawful and reasonable commands of the child's parent, legal
guardian or custodian, thereby interfering with their ability to
adequately care for and protect the child; (iii) repeatedly
fails to obey the lawful and reasonable regulations of the
child's school; (iv) is habitually truant; or (v) is a sexually
exploited child." G. L. c. 119, § 21. As relevant here, the
CRA statute defines one who is "[h]abitually truant" as "a
school-aged child, not excused from attendance under the lawful
and reasonable regulations of such child's school, who willfully
fails to attend school for more than [eight] school days in a
quarter." Id.
CRA proceedings are initiated when a parent, legal
guardian, custodian, or school district files an application in
the Juvenile Court for issuance of a petition that seeks a
determination that the child requires assistance. G. L. c. 119,
§ 39E. Upon this filing, the court issues a summons requiring
the child and his or her parents or guardian to appear before
it. Id. A Juvenile Court judge then conducts a preliminary
5
hearing to determine whether the petition should issue.3 Id. At
this hearing, the judge may decline to accept the application
because there is "no probable cause to believe that the child
and family are in need of assistance," or because "the interests
of the child would best be served by informal assistance, in
which case the [judge] shall, with the consent of the child and
the child's parents or guardian, refer the child to a probation
officer for assistance." Id. Alternatively, a judge may accept
the application and schedule a fact-finding hearing. Id. In
order for a judge ultimately to find that the child requires
assistance, the petitioner must prove the allegations of the
petition beyond a reasonable doubt. G. L. c. 119, § 39G.
Only after a child is proved habitually truant beyond a
reasonable doubt should the judge contemplate changes to the
child's custody arrangements. G. L. c. 119, § 39G. The judge,
"taking into consideration the physical and emotional welfare of
the child, may make any of the following orders of disposition":
(1) permit the child to stay with the parents, custodians, or
guardians, subject to conditions and limitations that the court
3
Both the child and the parents or legal guardians have a
right to counsel at all stages of CRA proceedings. G. L.
c. 119, § 39F.
6
may choose;4 (2) place the child in the care of a relative,
probation officer, other qualified adult, private charitable or
childcare agency, or other authorized or qualified private
organization, subject to conditions and limitations; or
(3) place the child in the custody of the Department of Children
and Families. G. L. c. 119, § 39G. The disposition is not a
direct order requiring the child to comply with the conditions,
however, and the judge may not impose penalties for criminal
contempt for the child's failure to comply.5 See Commonwealth v.
Florence F., 429 Mass. 523, 524-525 (1999).
b. Factual background. We summarize the Juvenile Court
judge's findings of fact concerning M.P., supplemented with
certain uncontested facts in the record. See Chin v. Merriot,
470 Mass. 527, 529 (2015).
i. Medical conditions. M.P. is a fifteen year old girl
who has been diagnosed with significant detrusor sphincter
discoordination (bladder condition), autism spectrum disorder
4
These conditions include "provision for medical,
psychological, psychiatric, educational, occupational, and
social services, and for supervision by a court clinic or by any
public or private organization providing counseling or guidance
services." G. L. c. 119, § 39G.
5
The order of disposition is effective for 120 days, and
may be extended for three additional periods of up to ninety
days each. G. L. c. 119, § 39G. After that, a new hearing is
required. See Matter of Hilary, 450 Mass. 491, 493-494 (2008).
The disposition is no longer effective after the child's
eighteenth birthday. G. L. c. 119, § 39G.
7
(autism), anxiety disorder, obsessive-compulsive disorder (OCD),
and posttraumatic stress disorder (PTSD).6 Her bladder condition
is such that she has difficulty voiding, and when she does so,
she usually "leaves behind a large volume of urine." As a
result, she needs to use the restroom frequently, often for
hours at a time. This condition makes her predisposed to
urinary tract infections. She also has an abnormally large
bladder. M.P. has experienced this condition since the age of
six, when she underwent a surgical procedure for her urinary
tract.7
M.P.'s bladder condition is compounded by her numerous
cognitive and emotional disorders. In kindergarten she was
diagnosed with "pervasive developmental disorder, not otherwise
specified"; this nomenclature is now subsumed under the
6
The Juvenile Court judge's findings of fact omitted M.P.'s
diagnoses of anxiety disorder, OCD, and PTSD. These diagnoses,
however, were contained in both doctors' letters and in service
providers' notes, the same medical records upon which the judge
relied without qualification.
7
In May, 2017, one of M.P.'s doctors prescribed a new
bladder relaxation medication in the hopes of improving her
condition. The fact-finding hearing in this case took place in
the same month that this medication was prescribed; accordingly,
the record is silent as to the effectiveness of this medication.
8
diagnosis of autism. In December, 2016, a child neurologist
confirmed that M.P. meets the criteria for autism.8
The child neurologist further opined that M.P. exhibits
many symptoms of OCD and has a "number of difficulties
processing sensory information -- she does not like to change
her clothes and some sounds are really bothersome." Relatedly,
a developmental pediatrician noted that M.P.'s autism and OCD
cause her to fixate on "obsessive rituals and rigidities that
control every aspect of her daily life." M.P. feels that she
cannot leave the house until her bladder is completely empty,
which typically takes hours. If she hears noises while she is
in the restroom, she has to begin her process of voiding from
the beginning. She has difficulty tolerating busy and
unpredictable settings and cannot use public restrooms. At one
point, in order to obtain a medical evaluation, her family had
to rent a nearby hotel room so that M.P. could have a "safe and
comfortable place to use the bathroom." Her anxiety regarding
8
The judge noted that, while the child neurologist shared
her opinions in writing with M.P.'s school district in
February, 2017, "no neurological testing results, evaluation
information, data, or the like were shared with the school. It
is unclear whether any such neurological testing, evaluation,
etc. actually was conducted. [The child neurologist] provided
her opinion based on her review of the literature . . . [and
M.P.'s] medical and educational history combined with her one
appointment with the child [in December, 2016]." The judge did
not, however, express any doubt as to whether M.P. has autism,
nor does the record suggest any reason to doubt this diagnosis.
9
her bladder condition is so great that she sleeps on a couch
close to the bathroom, rather than in her own bed. She also
often will hold her urine until her parents go to sleep.
M.P. also has aversions to many practices for ordinary
hygiene. She refuses to use feminine hygiene products or wear
appropriate seasonal clothing. She will not shower at home and
has only taken two showers in the past year, choosing instead to
clean herself with body wipes that in turn cause skin
irritation. She previously has been sent home from school for
offensive body odor. M.P. has almost no social or peer contact
outside her family.
In February, 2017, the developmental pediatrician concluded
that M.P.'s anxiety and OCD were associated with PTSD. She
opined that M.P. has medical necessity for direct one-to-one
"home based, behavioral therapy services utilizing Applied
Behavioral Analysis to target functional communication, social
pragmatics and other skills in order to generalize skills across
environments from the school to the home and general community."
In addition, the pediatrician observed that the CRA proceeding,
as described below, had "further impact[ed] [M.P.'s] wellbeing
with escalating anxiety and sadness and resultant worsening of
her emotional fragility and function." She reported that M.P.
was "not sleeping and [wa]s filled with anxiety regarding the
10
outcome of [the] case," and urged that the CRA case "be dropped
at once out of medical necessity."
ii. School attendance. M.P. initially was enrolled in an
online high school, but her parents decided to place her in the
Millis public school system for the 2016-2017 year in order to
obtain special education services.9 She did not attend classes
from the first day of school on August 31, 2016, through October
20, 2016. At the start of the school year, the school district
conducted an evaluation and the special education team
recommended that M.P. attend an extended forty-five day
evaluation in a therapeutic setting, because the school district
did not believe it could provide the services that M.P.
required. The school district enrolled her in the ACCEPT
Collaborative Therapeutic program from October 21, 2016, until
January 6, 2017, which provided her with a shortened school day.
Under this program, M.P. attended only nine shortened school
days, for a total of 10.5 hours of learning time.
The school district then arranged for home-based services
for M.P. through a private provider, beginning on December 27,
2016. A service provider began meeting with M.P. at her house
from 9 A.M. until 11 A.M., Monday through Thursday, to help her
9
Although the school district initially enrolled M.P. as a
ninth grader for the 2016-2017 year, later that year she was
offered enrollment at Keough Memorial Academy, a special
education day school, as an eighth grader.
11
prepare to leave the house. The provider arranged for tutoring
at home, and then helped her transition to tutoring at the
library; M.P. demonstrated increased ability to leave the house
and was making "great strides." Notably, after a few weeks, the
provider changed the meeting time to 12 P.M., to accommodate
both the schedule of the library and the tutor. The provider
explained that when M.P. had a clear understanding of what was
expected of her, she was successful in leaving the house with
him. Occasionally, however, M.P. continued to be unable to
leave the bathroom for long periods of time. Additionally, of
the thirty sessions scheduled between December 27, 2016, and
February 21, 2017, M.P.'s family canceled eight times (once for
a holiday and once for an appointment, but otherwise for reasons
that are not known) and the home-based service provider canceled
four times (three times due to weather conditions, and one time
for reasons unknown). M.P. was able to attend 55.5 per cent of
the scheduled tutoring sessions, for a total of 33.5 hours.
On March 13, 2017, M.P. was enrolled in Keough Memorial
Academy (Keough Memorial), a special education day school
designed for children with emotional disabilities, and was to
begin classes on March 29 of that year. Keough Memorial
educators were aware of M.P.'s disabilities and were confident
that they could meet her needs. M.P. was to continue with the
home-based service provider while attending Keough Memorial, and
12
the school district made an exception to permit the provider to
meet M.P. on weekends, not just on school days, to help her
maintain a routine. The provider then attempted to change his
appointments with M.P. back to 9 A.M., so that she could be
ready in time for the Keough Memorial school day. After this
change, the family canceled the home-based provider sessions
more frequently; of the twenty-four appointments scheduled
between February 22 and May 2, 2017, M.P.'s family canceled
twelve (once for an illness and once for an appointment, but
otherwise for unknown reasons) and the home-based provider
canceled three (once due to weather conditions, once because of
M.P.'s health, and once because of "unclear . . .
expectations").
Between April 5 and April 28, 2017, the home-based provider
did not schedule any appointments because the provider wanted to
meet M.P. in the morning, but the family wanted him to come in
the afternoon. The provider testified, however, that M.P. never
said that she did not want to go to school; to the contrary,
M.P. communicated to him that she did want to attend. By
May 1, 2017, M.P. had attended only eight shortened days at
Keough Memorial, for a total of 7.9 learning hours. She
typically arrived near the end of the school day.
As of April 20, 2017, M.P. also became eligible for
services with the Department of Developmental Services. That
13
month, the family arranged to have an applied behavior analyst
from an independent organization provide an initial assessment
of M.P. In his initial report, the analyst noted that her
behavior "poses a serious risk to the health and wellbeing of
herself and her family," and that her behaviors and anxieties
had persisted and intensified despite her parents' provision of
several accommodations and modifications. The analyst stated
that M.P.'s "challenging behavior" arose from pain and
discomfort due to complications regarding her bladder retention,
which was an "automatic" or "internal" function.
As of the time of the fact-finding hearing, the analyst had
met with M.P. only a few times, but he stated that an applied
behavior analysis therapist would soon work with M.P. for
eighteen hours per week. He anticipated that M.P. would need
treatment for from six months to one year. He also explained
that M.P. conveyed on "many occasions" that "she's very excited"
to start the program and loves school; she had been crying daily
because of her inability to attend school.
iii. CRA proceedings. On November 30, 2016, just a few
months after M.P.'s initial enrollment in the Millis public
schools, the school district filed a CRA petition, alleging that
M.P. was a child requiring assistance on the grounds that she
was habitually truant. A Juvenile Court judge held a
preliminary hearing on December 14, 2016, and accepted the
14
petition.10 The judge then scheduled a fact-finding hearing for
January 19, 2017, which was continued twice. A two-day fact-
finding hearing took place on May 4 and 26, 2017.
At the conclusion of the fact-finding hearing, the judge
found that M.P. was habitually truant and adjudicated her a
child requiring assistance. The judge noted that, under the CRA
statute, a child's failure to attend school must be wilful,
which the judge defined as "acting intentionally, as opposed to
accidentally or involuntarily." She concluded that
"[a]lthough . . . [M.P.'s] actions of failing to attend school
have been attributed to her medical conditions and emotional
challenges, they are still actions taken by the child not to
attend school." The judge noted that none of M.P.'s assessments
indicated that she "was either home bound or unable to benefit
from an education," and that there was no evidence indicating
that M.P. should be exempt from school.
The judge further found that M.P.'s parents "are now
working hard to obtain additional therapeutic services for their
daughter so that she can attend school." She stated that
"[m]any of the therapeutic services assessed by the parents were
pursued after the commencement of this CRA petition, while the
home based therapeutic services offered by the school were not
10
The record does not provide the basis for the judge's
decision to accept the CRA petition.
15
consistently utilized by the child or the parents." Ultimately,
however, the judge decided that M.P. "appears to be receiving
appropriate services and no further services need be ordered at
this time," and did not alter M.P.'s custody arrangements.
Nonetheless, the judge stated that later dispositional review
would be necessary to determine whether the newly implemented
services, meaning the sessions with the applied behavior
analyst, were sufficient. The judge also excused M.P. from
attending future hearings, noting that her time would be better
spent in school, rather than in the CRA hearings, which
"increase[d] her stress."
M.P. appealed from the CRA determination to a single
justice of the Appeals Court, pursuant to G. L. c. 119, § 39I.
The single justice referred the case to a full panel of the
Appeals Court. We then transferred the case to this court on
our own motion. The school district did not participate in the
appeal.
2. Discussion. There is no dispute that M.P. missed more
than eight days of school in each quarter of the 2016-2017
school year, and that most of her absences were not excused
"under the lawful and reasonable regulations of such child's
16
school."11 See G. L. c. 119, § 21. The question before us is
whether she "willfully fail[ed] to attend school." Id. This
court has not previously examined the meaning of this language.
We conclude that the CRA statute's habitual truancy provision
requires purposeful conduct by the child. When the child's
repeated failure to attend school arises from reasons portending
delinquent behavior, it is wilful under the statute.
a. Plain meaning. We review questions of statutory
interpretation de novo. Massachusetts Insurers Insolvency Fund
v. Smith, 458 Mass. 561, 564–565 (2010). In order to determine
what it means to "willfully fail[] to attend school," we turn
first to the plain meaning of the statutory language. "Where
the language is clear and unambiguous, it is to be given its
'ordinary meaning.'" Commonwealth v. Mogelinski, 466 Mass. 627,
633 (2013). The plain meaning of a statute "must be reasonable
and supported by the purpose and history of the statute." Id.,
quoting Wright v. Collector & Treas. of Arlington, 422 Mass.
455, 457–458 (1996).
We look initially "to dictionary definitions as a guide to
a term's plain or ordinary meaning." Commonwealth v. Samuel S.,
476 Mass. 497, 501 (2017). One dictionary defines "willful" as
"done deliberately" or "intentional," and "not accidental or
11
M.P. does not challenge the lawfulness or reasonableness
of her school's regulations regarding truancy.
17
without purpose." Webster's Third New International Dictionary
2617 (1993). According to Black's Law Dictionary, "willful"
means "[v]oluntary and intentional, but not necessarily
malicious." Black's Law Dictionary 1834 (10th ed. 2014).
Black's Law Dictionary further states, however, that a
"voluntary act becomes willful in law, only when it involves
conscious wrong or evil purpose on the part of the actor, or at
least inexcusable carelessness, whether the act is right or
wrong." Id. Thus, some definitions focus on the actor's
purpose, while others focus only on whether the actor's conduct
was voluntary or intentional.
Nor does wilfulness have a consistent meaning in our
jurisprudence. In the adoption context, we have explained that,
while wilfulness implies intentional conduct, it does not
require ill will. See Adoption of a Minor, 343 Mass. 292, 297
(1961) (statute permitting adoption without consent of parent
where parent wilfully deserts or neglects child "does not
require that the neglect to provide be done with malevolence or
ill will; it is enough if the conduct resulting in the failure
to provide was not unintentional"). In criminal cases, on the
other hand, we have held that conduct is wilful "when the actor
intends both the conduct and its harmful consequences."
Commonwealth v. Frith, 458 Mass. 434, 443 (2010), quoting
Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990). See
18
Commonwealth v. McDonald, 462 Mass. 236, 242 (2012).
Nonetheless, "in only a few select areas of law does 'willfully'
require a showing of an intent to violate a known legal duty."
Franklin Office Park Realty Corp. v. Commissioner of the Dep't
of Envtl. Protection, 466 Mass. 454, 456, 464 n.12 (2013)
(rejecting argument that wilfulness, as used in G. L. c. 21A,
§ 16 [administrative penalties act], requires knowledge that
"conduct will or may constitute a violation of applicable
environmental standards," and instead holding that wilfulness
only requires that "party who has not complied with the law knew
or should have known of the operative facts that made their acts
unlawful").
The question remains, then, whether wilfulness under the
CRA statute's habitual truancy provision implies merely
voluntary or intentional conduct, or also necessitates inquiry
into a student's purpose in missing school.
b. Legislative history. As the term "willfully" may have
several meanings when read in isolation, we turn to the broader
statutory context and legislative history of the CRA statute to
ascertain the intended meaning. See Franklin Office Park Realty
Corp., 466 Mass. at 463 ("Although 'willful' may have several
meanings when read in isolation, its meaning in any particular
statute may be determined from examining the act itself as well
as the larger statutory scheme").
19
The habitual truancy provision dates back to 1873, when the
Legislature enacted a statute requiring each city and town in
Massachusetts to impose criminal penalties for "habitual
truants." See St. 1873, c. 262 § 3 ("An Act concerning truant
children and absentees from school"). The legislation was
enacted in response to a report from the Board of Education,
which had collected numerous school committee reports
complaining of a lack of proper enforcement mechanisms to
address widespread truancy.12 See id.; Thirty-Sixth Annual
12
For example, the school committee of Barnstable noted
that four-fifths of the crimes in New England were committed by
those who had not been educated, and "[o]f juvenile offenders,
ninety-five hundredths [were] from ignorant and idle homes, and
a large number of them were truants from school at the time of
arrest." Thirty-Sixth Annual Report of the Board of Education,
Abstracts of School Committee Reports, at 3 (Jan. 1873).
Peabody's committee stated that the practice of sending truant
children to almshouses had done little to combat the growing
problem of truancy, and called for "habitual truants" to face
criminal sentences. Id. at 89-90. Salem's committee touted its
then recently enacted ordinance criminalizing truancy as a means
of deterrence. Id. at 94. Cambridge's committee, in turn,
attributed the majority of its truancy cases to the
"indifference, neglect or parsimony of parents," and stated that
"reformatory institutions" were better than almshouses for
addressing truancy. Id. at 121-122. Malden's superintendent of
public schools stated that truant children required greater
attention because other pupils "[were] led to imitate their bad
practices, and thus the evil [had] increased to no small
magnitude." Id. at 139. Wakefield's school committee stated
that "[i]gnorant boys [could] be seen every day in [the town's]
streets with nothing but mischief to occupy their time. Their
parents [were] too indifferent to their welfare, or too imbecile
to send them to school," and called for "strict enforcement" of
compulsory education. Id. at 147. Clinton's committee chairman
also called for trial judges to handle cases of truancy, noting
20
Report of the Board of Education, Abstracts of School Committee
Reports (Jan. 1873).
A century later, Governor Francis W. Sargent and others
recognized that to send habitual truants and other status
offenders "away from their homes to an institution which
deprives them of their liberty and individuality and, at times,
inflicts physical punishment and harassment, is to blame the
victims of society's neglect and to hinder their eventual
rehabilitation." See F.W. Sargent, Letter to the Senate and
House of Representatives (Nov. 20, 1972), 1973 House Doc. No.
5593. As then Governor Sargent explained, "we now know that
there is an alternative to institutionalization -- community
based treatment. It is better for the child and better for the
taxpayers." Id.
Thus, the Legislature enacted the children in need of
services (CHINS) statute, the predecessor of the CRA statute, in
1973. The CHINS statute decriminalized status offenses such as
truancy by removing them from the delinquency jurisdiction of
that its local truancy officer was ill-equipped to address the
problem. Id. at 202-203. Westborough's school committee
chairman attributed the problem of truancy to the indifference
of parents who were often "ignorant" themselves and advocated
for a "board of truant officers." Id. at 219. Worcester's
truant school committee also noted that its truant officer was
overburdened and that the children who were "not sent to school
at all" were those whom it considered the "children most sinned
against." Id. at 230.
 21
the Juvenile Court and tasking Juvenile Court judges with
providing "nonpunitive care to address the problem of certain
children." See Florence F., 429 Mass. at 527, citing St. 1973,
c. 1073; Ireland & Kilcoyne, Juvenile Law § 4.2. Notably, the
CHINS statute defined a "child in need of services" on the
grounds of truancy in almost the same language as does the
current CRA statute: as a child who is "between the ages of six
and sixteen who persistently and wilfully fails to attend
school." See 1973 Senate Doc. No. 1922; 1973 House J. 3941.
The statute's inclusion of habitual truants is consistent with
the Legislature's recognition that education is vital to a
child's progress. See, e.g., Care & Protection of Charles, 399
Mass. 324, 335 (1987) ("[c]ompulsory school attendance laws and
the great expenditures for education both demonstrate our
recognition of the importance of education . . . . It is the
very foundation of good citizenship. Today it is a principal
instrument in awakening the child to cultural values, in
preparing him for later professional training, and in helping
him to adjust normally to his environment" [citation omitted]).
CHINS proceedings were intended to target children who
"fall between the chairs, so to speak. They are not the
dependent children who are clearly entitled to the full
protection of the [J]uvenile [C]ourt. Neither are they law
breakers entitled to whatever firm or lenient treatment the law
22
or individual judge feels appropriate for such offenders."
Florence F., 429 Mass. at 528, quoting In re Ronald S., 69 Cal.
App. 3d 866, 869 (1977). The goals of the CHINS statute were
"(a) preventing delinquency involvement; (b) fostering the
pursuit of education; and (c) providing support to families
during periods of emotional turbulence." Ireland & Kilcoyne,
Juvenile Law, supra at § 4.5. See id. at § 4.1 ("the court's
approach is that through the provision of certain rehabilitative
or preventive services . . . the child will be diverted from the
tendency to engage in future delinquent behavior").
The CHINS statute was significantly amended in 2012, when
it was reformulated as the CRA statute, but the overarching
purpose of the statute did not change. The 2012 amendments were
enacted in response to the Legislature's recognition of the
CHINS statute's failure to "[keep] children out of the juvenile
justice system as the [L]egislature intended." See Press
Release, Governor Patrick Signs Legislation to Reform Children
in Need of Services System (Aug. 7, 2012). The amendments
sought to achieve this goal by making proceedings less
adversarial, and to "divert cases from the courts into a system
of community-based service providers."13 Senate OK's Changes on
13
The amendments provided for the establishment of a system
of community-based resources and assistance to families to
coordinate screenings, assessments, and referrals, and required
23
Runaways, Truants, State House News Service, July 15, 2011. The
CRA statute treats involvement of the Juvenile Court system as
something of a last resort. See G. L. c. 119, § 39E (before CRA
petition is filed, "the clerk 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, community-based services program or other . . .
community-based services in the [J]uvenile [C]ourt district
where the child resides and return to court at a later time to
file an application for assistance, if needed"; clerk also is
required to "prepare, publish and disseminate to each petitioner
educational material relative to available family resource
centers, community-based services programs and other entities
designated by the [S]ecretary of [H]ealth and [H]uman
services").
Proponents of the CRA statute reasoned that "the current
studies suggest[ed] that children . . . who are regularly
school districts to establish truancy prevention programs for
habitually truant students before referring them to the Juvenile
Court. See R.L. Ireland & P. Kilcoyne, Juvenile Law § 4.1
(Supp. 2017). The revisions also made CRA proceedings
confidential; adjusted the adjudication procedures by, inter
alia, removing the provisions for a jury trial; and provided
that, where a child was in need of assistance, he or she no
longer could be placed with the Department of Youth Services or
shackled and restrained in a delinquent juvenile facility, but
could be placed with the Department of Children and Families.
See id.
24
exposed to the courts are more likely to be involved in serious
crimes later in life." Senate OK's Changes on Runaways,
Truants, supra. See Lawmakers, Advocates Urge Overhaul of Child
Services System, State House News Service, Mar. 30, 2011
("Arguing that the [S]tate's [thirty-eight year old] system of
services for troubled children forces them into the court system
prematurely and can tear families apart, lawmakers and advocacy
groups called yesterday for an overhaul of the system"); State
House Rally Calls for Children's Services Reform, MetroWest
Daily News, June 28, 2012; Politicians Push for New Way to Deal
with Troubled Kids, MetroWest Daily News, Mar. 30, 2011 (Reis)
("Advocates, parents and graduates of Children in Need of
Service argue early court involvement can push adolescents into
a life of crime"). Although CRA determinations are not entered
on children's juvenile records, see G. L. c. 119, § 39E,
proponents noted that the mere fact of children's involvement
with the Juvenile Court stigmatizes them and makes them "more
likely to be involved in serious crimes later in life." See
State Capitol Briefs, State House News Service, July 14, 2011.
See, e.g., Lawmakers Push New System to Serve Troubled Kids,
State House News Service, Oct. 6, 2009; Politicians Push for New
Way to Deal with Troubled Kids, supra.
As Senator Karen Spilka, the lead Senate sponsor of the CRA
bill, explained:
25
"[The CHINS statute] began with good intentions. Its
goal was to prevent children from entering the juvenile
justice system. But the irony of this is that the court
system was telling parents and families to go to this
system, so we were sending messages that didn't make sense.
We heard time and time again after many meetings that
parents and children should not have to go to court to get
services. The second thing we were hearing was focusing on
the children's behavior, and this was an adversarial
system. This was not bad for all families but it tore a
lot of them apart. . . . The third thing was that each
community needs to have services available for children[]
and families; this is faster, easier, and resolves issues
more quickly. . . . This bill removes labels from children
and removes stigma from them . . . . [T]hat is a wonderful
thing."
2011 House Doc. No. 3492, Senate Floor Debate, July 12, 2011.
Therefore, as with the CHINS statute, the purpose of the
CRA statute is to "address the root causes of juvenile
delinquency." State House Rally Calls for Children's Services
Reform, supra. The legislative history and statutory scheme as
a whole demonstrate that in order to determine whether a child
has "willfully fail[ed] to attend school," a Juvenile Court
judge must examine the child's purpose or reasons for being
absent, so that the judge can decide whether the student's
behavior arises from reasons portending delinquent behavior.
c. Authority in other jurisdictions. Nearly every State
has a statute authorizing courts or law enforcement officers to
intervene in the custody arrangements of children who are in
need of services or supervision because, inter alia, they have
run away from home, are truant, are beyond the control of their
26
parents or guardians, or otherwise are jeopardizing their own
welfare or that of others.14 Although most of these statutes
14
See, e.g., Ala. Code §§ 12-15-201(4), 12-15-215; Alaska
Stat. §§ 47.10.011, 47.10.142(e); Ariz. Rev. Stat. Ann. §§ 8-
201(19), 8-341(A)(2), 15-803(B); Ark. Code Ann. §§ 9-27-303(24),
9-27-322; Cal. Welf. & Inst. Code § 601; Conn. Gen. Stat.
§§ 46b-120(5), 46b-149; Del. Code Ann. tit. 10, § 921(6)(b);
D.C. Code §§ 16-2301(8), 16-2320(c); Fla. Stat. §§ 984.03(9),
984.22(2); Ga. Code Ann. §§ 15-11-2(11), 15-11-381, 15-11-442;
Haw. Rev. Stat. § 571-11(2)(B)-(D); Idaho Code Ann. § 20-505;
705 Ill. Comp. Stat. 405 / §§ 3-3, 3-24, 3-33.5; Ind. Code
§§ 31-34-1-6, 31-34-20-1; Kan. Stat. Ann. §§ 38-2022(d), 38-
2253; Ky. Rev. Stat. Ann. §§ 159.150, 630.020, 630.120; La.
Child. Code Ann. arts. 728, 730, 779; 15 Me. Rev. Stat. § 3501;
Md. Code Ann., Cts. & Jud. Proc. § 3-8A-01(e), 3-8A-19; Mich.
Comp. Laws § 712A.2(a)(4); Minn. Stat. §§ 260C.007(6), 260C.201;
Miss. Code Ann. §§ 43-21-105(k), 43-21-607; Mo. Rev. Stat.
§ 211.031; Mont. Code Ann. §§ 41-5-103(22), (51), 41-5-1512;
Neb. Rev. Stat. § 43-247; Nev. Rev. Stat. § 62B.320; N.H. Rev.
Stat. Ann. §§ 169-D:2(II), 169-D:17; N.J. Stat. Ann. §§ 2A:4A-
83, 2A:4A-89; N.M. Stat. Ann. §§ 32A-3B-2, 32A-3B-16; N.Y. Fam.
Ct. Act § 712(a), 754; N.C. Gen. Stat. §§ 7B-1501(27), 7B-2503;
N.D. Cent. Code §§ 27-20-02(19), 27-20-32; Ohio Rev. Code Ann.
§§ 2151.022, 2151.354; 2017 Okla. Sess. Laws c. 254 (S.B. 718)
(enacted 2017); Or. Rev. Stat. § 419B.100; 42 Pa. Cons. Stat.
§§ 6302 ("[d]ependent child"), 6351; R.I. Gen. Laws §§ 14-1-
3(9), 14-1-32; S.C. Code Ann. §§ 63-19-20(9), 63-19-1440; S.D.
Codified Laws §§ 26-8B-2, 26-8B-6; Tenn. Code Ann. §§ 37-1-
102(26), 37-1-132; Tex. Fam. Code Ann. §§ 51.02(15), 51.03(b),
54.05; Utah Code Ann. §§ 53A-11-101, 78A-6-103, 78A-6-105(18);
Vt. Stat. Ann. tit. 33, §§ 5102, 5318; Va. Code Ann. §§ 16.1-228
("[c]hild in need of services"), 16.1-278.4, 16.1-278.6; Wash.
Rev. Code §§ 43.185C.260, 28A.225.030; W. Va. Code §§ 49-1-202
("[s]tatus offender"), 49-4-712; Wyo. Stat. Ann. §§ 14-6-
402(a)(iv), 14-6-429. Colorado had similar provisions, which
have since been repealed. Colo. Rev. Stat. § 19-1-103(5),
(20)(f), repealed by Laws 1994, S.B. 94-21, § 1 (effective July
1, 1997). The Wisconsin and Iowa statutes concerning children
in need of services or supervision only cover children who are
the subject of abandonment, abuse, or neglect, rather than those
who are deemed to be engaging in improper or injurious behavior.
See Iowa Code §§ 232.2(6), (20), 232.102; Wis. Stat. § 48.13.
27
include provisions on truancy,15 only Massachusetts and five
other States (Michigan, Mississippi, New Hampshire, Oklahoma,
and Rhode Island) have statutory language that expressly
includes a wilfulness component in the truancy provision.16
15
See, e.g., Ala. Code § 12-15-201(4); Ariz. Rev. Stat.
§ 8-201(19)(b); Ark. Code Ann. § 9-27-303(24)(A); Cal. Welf. &
Inst. Code § 601; Conn. Gen. Stat. § 46b-120(5); D.C. Code § 16-
2301(8)(A)(i); Fla. Stat. § 984.03(9); Ga. Code Ann. § 15-11-
2(11); Haw. Rev. Stat. § 571-11(2)(C); 705 Ill. Comp. Stat. 405
/ § 3-33.5; Kan. Stat. Ann. § 38-2022(d)(6); Ky. Rev. Stat. Ann.
§§ 159.150, 630.020(3); La. Child. Code Ann. art. 730(1); Md.
Code Ann., Cts. & Jud. Proc. § 3-8A-01(e)(1); Mich. Comp. Laws
§ 712A.2(a)(4); Minn. Stat. § 260C.007(6)(14), (19); Miss. Code
Ann. § 43-21-105(k)(ii); Mo. Rev. Stat. § 211.031(1)(2)(a);
Mont. Code Ann. § 41-5-103(22), (51); Neb. Rev. Stat. § 43-
247(3); Nev. Rev. Stat. § 62B.320(1)(a); N.H. Rev. Stat. Ann.
§ 169-D:2(II)(a); N.M. Stat. Ann. § 32A-3B-2(A); N.Y. Fam. Ct.
Act § 712(a); N.C. Gen. Stat. §§ 7B-1501(27)(a), 7B-2503; N.D.
Cent. Code § 27-20-02(19); Ohio Rev. Code Ann. §§ 2151.022,
2151.354; 2017 Okla. Sess. Laws c. 254 (S.B. 718); 42 Pa. Cons.
Stat. § 6302; R.I. Gen. Laws §§ 14-1-3(9), 14-1-32; S.C. Code
Ann. § 63-19-20(9); S.D. Codified Laws § 26-8B-2(1); Tenn. Code
Ann. § 37-1-102(26)(A); Tex. Fam. Code Ann. § 51.02(15)(C); Utah
Code Ann. §§ 53A-11-101, 78A-6-103(1)(i), 78A-6-105; Vt. Stat.
Ann. tit. 33, §§ 5102(3)(D), 5318; Va. Code Ann. § 16.1-228;
Wash. Rev. Code §§ 43.185C.260, 28A.225.030(4); W. Va. Code
§ 49-4-712; Wyo. Stat. Ann. § 14-6-402(a)(iv).
16
Mass. G. L. c. 119, § 21 ("[c]hild requiring assistance"
includes one who is "habitually truant," meaning he or she
"willfully fails to attend school for more than [eight] school
days in a quarter"); Mich. Comp. Laws § 712A.2(a)(4) (family
court has jurisdiction over, inter alia, juvenile who "willfully
and repeatedly absents himself or herself from [a] school or
other learning program intended to meet the juvenile's
educational needs"); Miss. Code Ann. § 43-21-105(k)(ii)
("[c]hild in need of supervision" includes one who "willfully
and habitually absents himself" from school); N.H. Rev. Stat.
Ann. § 169-D:2(II)(a) ("[c]hild in need of services" includes
one "[w]ho is subject to compulsory school attendance, and who
is habitually, willfully, and without good and sufficient cause
28
Notwithstanding the absence of a wilfulness component in
their comparable statutes, Minnesota and New York have, in turn,
interpreted their truancy provisions to require purposeful
conduct. See Matter of the Welfare of B.K.J., 451 N.W.2d 241,
243 (Minn. App. 1990); Matter of Simon v. Doe, 165 Misc. 2d 379,
380-381 (N.Y. Fam. Ct. 1995). For example, the Minnesota
Supreme Court has determined that under its "child in need of
protection or services" framework, "[t]ruancy implies volitional
conduct on the part of the child for which the child is
responsible." Matter of the Welfare of B.K.J., supra. Thus, a
"child who is absent from school in obedience to a parent's
wrongful command should not be stigmatized or confused by an
unwarranted truancy label."17 Id. By inquiring whether the
truant from school"); 2017 Okla. Sess. Laws c. 254(8)(c) (S.B.
718) ("[c]hild or juvenile in need of supervision" includes one
who is "willfully and voluntarily absent from school"); R.I.
Gen. Laws § 14-1-3(9) ("[w]ayward" child includes one who is
required to attend school and "willfully and habitually absents
himself or herself from school"). Michigan has further held
that a child's absences are not wilful, as required by its
truancy statute, where they are attributable to illness and fear
of bullying, as "Michigan courts must infer a criminal intent
for every offense in the absence of an express or implied
[l]egislative intent to dispense with criminal intent" (citation
omitted). In re Napieraj, 304 Mich. App. 742, 747-748 (2014).
17
See Matter of Simon v. Doe, 165 Misc. 2d 379, 380-381
(N.Y. Fam. Ct. 1995) (New York's "person in need of supervision"
statute requires "[an] intentional failure to attend school" for
purposes of truancy; therefore, child with extreme anxiety-based
school phobia who was not attending school was not in need of
supervision because her will was "overborne by anxiety").
29
child is responsible for his or her own conduct, and not simply
whether the child is acting intentionally, Minnesota's
instructive approach seeks to ascertain the underlying reason
for the child's absences.
d. Wilfulness under the CRA statute. In order to
effectuate the Legislature's goals, the phrase "willfully fails
to attend school," as used in the CRA statute's habitual truancy
provision, must require more than voluntary or intentional
conduct. The primary concern of the truancy provision is to
target children who are, for instance, "playing hooky" or beyond
their parents' control. Cf. Matter of the Welfare of L.Z.,
C.R.P., & S.L.P., 396 N.W.2d 214, 218 (Minn. 1986) ("The classic
case of truancy is the child sent to school by his parents, who
then skips"). We conclude that a child "willfully fails to
attend school" when he or she acts purposefully, such that his
or her behavior arises from reasons portending delinquent
behavior.18 Ascertaining the child's purpose in failing
The Vermont Supreme Court declined to adopt Minnesota's
approach because it determined that the language of the Vermont
statute defining a truant as one who, "being subject to
compulsory school attendance, is habitually and without
justification truant from school," did not imply a volitional
element. See Matter of A.V., S.T., A.C., & E.V., 176 Vt. 568,
571 (2003).
18
Even in such cases, the intervention and other services
contemplated under the CRA statute may be a more effective
method of changing the child's behavior than bringing the child
30
repeatedly to attend school allows the court to focus on whether
the behavior is such that it can and should be deterred, and on
whether the child's home circumstances are such that the court
should change, or place conditions on, the child's custody
arrangements. See G. L. c. 119, § 39G (choices available to
Juvenile Court judge in CRA proceedings concern only custody,
and provision of services may be merely conditions of custody).
See also Oscar F. v. County of Worcester, 412 Mass. 38, 41
(1992) (statute "is concerned with social and family problems.
It does not make the kind of education that a child receives a
central judicial concern").
We emphasize that a finding of wilfulness is a fact-based
inquiry that will depend on the circumstances of each case. Not
every case involving a mental or physical disability necessarily
will shield a child from a finding of wilfulness, since not
every disability affects a child's ability to attend school.
Each child's purpose or reasons for missing school should be
examined individually in order to determine whether the absences
are wilful beyond a reasonable doubt. Given their experience
with juveniles and with delinquency matters, Juvenile Court
judges are uniquely situated to assess whether the child's
into court. The design of the CRA statute, with its emphasis on
community-based resources, indicates that the Legislature
envisioned a deliberate set of escalating measures, in which
court intervention would be the last alternative.
31
reasons for regularly missing school are of the concerning
nature that would portend delinquency and call for deterrence.
e. Application to M.P. With this definition in mind, the
evidence in the record does not support a finding beyond a
reasonable doubt that M.P. "willfully fail[ed] to attend
school." Even assuming that the judge correctly determined that
M.P.'s acts of staying home were voluntary or intentional, it is
uncontested that her purpose was to address her bladder
condition and associated mental and emotional impairments.
While M.P. was not "home bound" per se, nor exempt from school,
nothing of record suggests that M.P.'s behavior exhibited
problems or tendencies that could lead toward juvenile
delinquency. To the contrary, the Juvenile Court judge
acknowledged that M.P. desired to go to school, and it is
undisputed that M.P. was saddened by her inability to do so.
Even during the short period when she established a routine with
the in-home service provider, M.P.'s bladder condition still
interfered with her ability to leave the house.
Nor do the judge's findings and the record show that a
modification of her custody arrangements would help improve
M.P.'s attendance record.19 Cf. Matter of Benjamin A., 2011 N.Y.
19
If, unlike here, a child's absences were the result of
parental neglect such that the child's truant behavior was not
found to be wilful, the child could not be adjudicated a child
32
Slip Op. 52217, at n.14 (N.Y. Fam. Ct. Oswego County Sept. 26,
2011) (unreported) ("Even if the Court could find otherwise, a
[person in need of services] label is not going to get Benjamin
to school. All the services he needs to be successful are
available to him through the school district and diversion
services. If those services do not . . . work and Benjamin does
not attend school, what could this Court do but remove[] him
from his family and place him into an ill-prepared and
overworked juvenile justice system").
We note that an incorrect CRA adjudication is not without
consequences. Even where, as here, there is no change in
custody, such a finding can be harmful in at least two respects.
First, CRA proceedings could affect parents' custodial rights in
the future; courts have considered such proceedings in care and
protection cases when terminating parental custody. See, e.g.,
requiring assistance by virtue of habitual truancy and the
matter of appropriate custodial arrangements accordingly could
not be addressed pursuant to that statute. That being said,
however, the matter of parental neglect and custodial
arrangements for the child may be addressed in care and
protection proceedings brought in the Juvenile Court pursuant to
G. L. c. 119, §§ 24, 26. Such proceedings may be brought on
behalf of a child who "(a) is without necessary and proper
physical or educational care and discipline; (b) is growing up
under conditions or circumstances damaging to the child's sound
character development; (c) lacks proper attention of the parent,
guardian with care and custody or custodian; or (d) has a
parent, guardian or custodian who is unwilling, incompetent or
unavailable to provide any such care, discipline or attention."
G. L. c. 119, § 24.
33
Care & Protection of Sam, 87 Mass. App. Ct. 1106 (2015);
Adoption of Odessa, 76 Mass. App. Ct. 1118 (2010). Second, as
discussed, the CRA statute was amended specifically to minimize
children's exposure to the Juvenile Court unless court
involvement is necessary, in order to prevent the stigma and
other negative consequences of premature court involvement. In
this case, the evidence showed that the CRA proceedings worsened
M.P.'s condition and increased her anxiety, stress, and
sadness.20
The evidence of record does not support a finding beyond a
reasonable doubt that M.P. "willfully fail[ed] to attend
school." Accordingly, the judgment must be vacated and set
aside. The matter is remanded to the Juvenile Court for entry
of an order dismissing the CRA petition.
So ordered.
20
We note that the Bureau of Special Education Appeals may
have been a more appropriate venue in this case to ensure that
M.P. was receiving an adequate education. See G. L. c. 71B,
§ 2A. This administrative body has authority to provide
"adjudicatory hearings, mediation and other forms of alternative
dispute resolution" concerning "any matter relating to the
identification, evaluation, education program or educational
placement of a child with a disability or the provision of a
free and appropriate public education to the child." Id.