Com. v. Florence F.

• Decision Date: 05 May 1999
• Citation: 709 N.E.2d 418,429 Mass. 523
• Parties: COMMONWEALTH v. FLORENCE F., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 418

709 N.E.2d 418

429 Mass. 523

COMMONWEALTH v. FLORENCE F., a juvenile.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued April 5, 1999.

Decided May 5, 1999.

Elspeth B. Cypher, Assistant District Attorney (Steven Melo, Assistant District Attorney, with her) for the Commonwealth.

Amy M. Karp, Committee for Public Counsel Services, Boston, for the defendant.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

IRELAND, J.

The present case raises a challenging issue that the Juvenile Court deals with on a daily basis--children in need of services (CHINS) proceedings. One of the most troubling questions about CHINS cases is whether the Juvenile Court has the authority to issue contempt orders for the violation of conditions of custody dispositions. Although we conclude that the Juvenile Court does not have the power of contempt for violation of conditions of custody because the plain language of G.L. c. 119, § 39G, as well as our case law, precludes Juvenile Court judges from issuing direct orders in CHINS cases, thereby prohibiting that court from charging a child with criminal contempt, we urge the Legislature to address and resolve this well-known and long-standing problem.

1. Facts. On March 3, 1997, a judge in the Taunton Division of the Juvenile Court Department adjudicated the juvenile a child in need of services pursuant to G.L. c. 119, § 21, and § 39G. The judge issued a disposition order that permitted the juvenile to remain in her mother's custody on the condition that she attend school. ¹

On April 4, 1997, the juvenile's probation officer filed a criminal complaint with the Juvenile Court, alleging that the juvenile failed to attend school, and, therefore, "did wilfully, clearly, and intentionally disobey that order." She was charged as a delinquent by reason of criminal contempt and the matter was transferred to the Fall River Juvenile Court. The parties agreed that the juvenile was in violation of the conditions of custody because she failed to attend school. On January 6, 1998, the juvenile filed a motion to dismiss the complaint, which was granted by a judge in that court on February 2, 1998. ² The Commonwealth timely filed a notice of appeal. We transferred the case from the Appeals Court on our own motion.

2. Discussion. In Matter of Vincent, 408 Mass. 527, 562 N.E.2d 465 (1990), we concluded that Juvenile Court judges may not directly order children to attend school in CHINS proceedings, and, therefore, may not hold these children in criminal contempt based on their failure to comply with such an invalid order. See id. at 531, 562 N.E.2d 465. In that case, the Juvenile Court judge at a CHINS proceeding directly ordered a child to attend school, threatening to send him to the Department of Youth Services (DYS) if he failed to do so. See id. at 528, 562 N.E.2d 465. Because "[n]owhere does [G.L. C. 119, § 39G, ]³ authorize a judge directly to order a child to attend school or to abide by other conditions the judge imposes except as a condition of custody," we concluded that a judge's direct order to attend school was invalid, and, therefore, the child could not be charged with criminal contempt for violating that order. Id. at 531-532, 562 N.E.2d 465. We reaffirm the holding of Matter of Vincent, precluding Juvenile Court judges from issuing direct orders against a child, and address an issue not resolved in that case--whether the Juvenile Court may issue a complaint for criminal contempt for failure to comply with a condition of custody. We conclude that the Juvenile Court lacks the power to do so.

Criminal contempt for violation of an order requires a clear and unequivocal order, evidence that the defendant knew of the order and its repercussions, and intentional disobedience of the order. See Furtado v. Furtado, 380 Mass. 137, 144-145, 402 N.E.2d 1024 (1980). Courts have the inherent power of contempt for violation of their orders. See Doe v. Commonwealth, 396 Mass. 421, 422, 486 N.E.2d 698 (1985). This inherent power, however, is recognized only if the underlying order is valid. See Matter of Vincent, supra at 530, 562 N.E.2d 465.

We conclude that the Juvenile Court does not have the power of contempt for failure to comply with conditions of custody in a CHINS case because there is no valid order on which contempt can be based. ⁴ Contempt requires a clear and unequivocal, or direct, order as its basis. See Furtado v. Fur supra at 144-145, 402 N.E.2d 1024. Because Juvenile Court judges may not issue direct orders in CHINS proceedings, see Matter of Vincent, supra at 531, 562 N.E.2d 465, no provision of the Juvenile Court in CHINS cases, even a condition of custody, can be a valid order sufficient to provide a basis for criminal contempt.

We look first to the language of the CHINS statute, which indicates that the Juvenile Court may not provide criminal sanctions, such as contempt, in CHINS cases. General Laws c. 119, § 39E, explicitly states: "Proceedings pursuant to sections thirty-nine E to thirty-nine I, inclusive, shall not be deemed criminal proceedings." Moreover, the CHINS statute prohibits the incarceration or detention of children so adjudicated. See G.L. c. 119, § 39G. General Laws c. 119, § 39G, reads: "A child found to be in need of services shall not be committed to any county training school. A child found to be in need of services shall not be committed to an institution designated or operated for juveniles adjudicated delinquent." ⁵ Because criminal contempt is punitive and could result in detention, charging a CHINS juvenile with criminal contempt is a remedy that directly contradicts these statutory provisions.

In addition, the plain language of the CHINS statute indicates the absence of the Juvenile Court's power of contempt for failure to comply with CHINS dispositions. See G.L. c. 119, §§ 39E-39J. The Legislature has expressly provided the options available for failure to comply with conditions of custody, including placement with DSS or counselling, but excluding criminal contempt. See G.L. c. 119, § 39G. Nothing in G.L. c. 119, §§ 39E-39J, expressly permits the Juvenile Court to use its inherent power of contempt as a remedy for noncompliance with CHINS dispositions. ⁶

Moreover, the policy underlying the CHINS statute supports the absence of the Juvenile Court's contempt power. The CHINS statute decriminalizes status offenses by focusing on providing nonpunitive care to address the problem of certain children. See St.1973, c. 1073. Similarly, the Juvenile Justice and Delinquency Prevention Act of 1974, which provides financial assistance to States, based on compliance with enumerated conditions, for juvenile justice programs, sets forth the Federal policy to "develop and conduct effective programs to prevent delinquency, to divert juveniles from the traditional juvenile justice system and to provide critically needed alternatives to institutionalization." ⁷ 42 U.S.C. § 5602(b)(2) (1998). The enactment of the CHINS statute signified a switch from criminalizing truancy and children in need of services to providing protective care for children. See St.1973, c. 1073.

We recognize that the absence of enforcement powers poses difficulties for the Juvenile Court judges, and we urge the Legislature to revisit this issue in order to give the Juvenile Court the authority it needs to address the serious problem of children in need of services in furtherance of the Commonwealth's "long-standing interest in protecting the welfare of children living within its borders." Matter of Gail, 417 Mass. 321, 326, 629 N.E.2d 1308 (1994), quoting Custody of a Minor, 375 Mass. 733, 754, 379 N.E.2d 1053 (1978).

Juvenile Court proceedings for children in need of services have created widespread frustration, concern, and criticism among judges. Juvenile Court judges often find themselves "between a rock and a hard place" in CHINS cases. On the one hand, they are asked to compel a child to attend school; on the other hand, they have no tools to make a child comply with their orders. CHINS "have always been a major headache to the juvenile court. They fall between the chairs, so to speak. They are not the dependent children who are clearly entitled to the full protection of the juvenile court. Neither are they law breakers entitled to whatever firm or lenient treatment the law or individual judge feels appropriate for such offenders." In re Ronald S., 69 Cal.App.3d 866, 869, 138 Cal.Rptr. 387 (1977). Often a Juvenile Court judge finds himself "acting as a glorified babysitter ... a frustrated judicial truant officer, [and] a reluctant enforcer of curfew laws," working in an extremely frustrating environment. Id. at 870, 138 Cal.Rptr. 387.

Many other jurisdictions have been faced with similar concerns with CHINS programs and have reformed their proceedings, through both legislative and judicial amendments, to provide Juvenile Court judges with some mechanism to punish those who violate their orders. ⁸ To combat this problem, solutions have ranged from amending the CHINS statute to permit contempt to modifying the type of contempt or detention available to charging contempt only when all less restrictive options have failed.

We take judicial notice of several recent studies conducted in Massachusetts which point to the correlation between children in need of services and subsequent delinquency, and document the seriousness of the need for action to provide sufficient options to address the problem. ⁹ See In Jeopardy and at Risk: CHINS Cases in Massachusetts, Office of the Commissioner of Probation (Nov., 1998); Report on Truancy, BBA Task Force on Children in Need of Services (July, 1998); Supreme Judicial Court Commission on Juvenile Justice (June, 1994). More than fifty per cent of children adjudicated CHINS commit subsequent criminal offenses and are adjudged delinquent, highlighting the need for more effective methods of...