In re Angela

• Decision Date: 31 August 2005
• Citation: 833 N.E.2d 575,445 Mass. 55
• Parties: In the Matter of ANGELA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

833 N.E.2d 575

445 Mass. 55

In the Matter of ANGELA.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued April 4, 2005.

Decided August 31, 2005.

COPYRIGHT MATERIAL OMITTED

Michael F. Kilkelly for the child.

Daniel J. Hammond, Assistant Attorney General, Boston, for Department of Social Services.

The following submitted briefs for amici curiae:

Thomas F. Reilly, Attorney General & Daniel J. Hammond, Assistant Attorney General, Boston, for Juvenile Court Department of the Trial Court.

Marvin R. Ventrell, Denver, Colorado, R. Susan Dillard, Committee for Public Counsel Services, & Barbara Kaban, for Committee for Public Counsel Services & others.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

In this appeal we decide that, before a judge may extend up to six months a dispositional order with an out-of-home placement arising from an adjudication that a child is in need of services, G.L. c. 119, § 39G, third par., requires the judge to hold an evidentiary hearing and find by a preponderance of the evidence that the purposes of the dispositional order have not been accomplished and that an extension of the order would be reasonably likely to further those purposes.¹

These proceedings began on November 20, 2002, when a school official from the town of Mashpee filed a petition in the Juvenile Court alleging that an eleven year old girl, whom we shall call Angela, was a child in need of services (CHINS) by reason of truancy. See G.L. c. 119, § 39E, third par. Represented by counsel, Angela waived her right to trial by jury in the first instance, see G.L. c. 119, § 39E, ninth par., and on January 3, 2003, admitted to sufficient facts to being truant. She was adjudicated a CHINS, and she waived her right to appeal for a trial de novo before a jury of six. See G.L. c. 119, § 39E, ninth par.; G.L. c. 119, § 39I. Disposition was continued to January 31, 2003, pending the report of the Juvenile Court clinic.

In the interim the judge ordered Angela be placed in (continued) custody of her mother, on condition that Angela attend school punctually and cooperate with agents of the Department of Social Services (department). See Matter of Vincent, 408 Mass. 527, 530-532, 562 N.E.2d 465 (1990) (judge may not directly order school attendance in CHINS case, but may order school attendance as condition of custody). The court clinic evaluation indicated that Angela refused to meet with the court clinician and that her mother had limited insight into Angela's problems. On January 31, 2003, the judge made a dispositional order of commitment to the department with a provision that Angela be placed outside the home.² See G.L. c. 119 § 39G, first par. (c). Neither the adjudication nor the original dispositional order was appealed.

In the twelve months that followed, the proceedings were complicated by Angela's persistent refusal to attend school, her refusal to participate in testing, and her hospitalization for depression. She was twice "readjudicated" a CHINS and remained in the custody of the department. Because no appeal was taken from those "readjudications," further details are not useful.

On February 13, 2004, Angela was again "readjudicated" a CHINS. That order is the subject of this appeal. No school official was present and prepared to prosecute the case. A representative of the department was present. Counsel for Angela requested the matter be dismissed for failure to prosecute. He requested, in the alternative, that an evidentiary hearing be held on the question whether Angela "continues to be a child in need of services" and that the judge make findings of fact on that issue. The matter was not dismissed, and there was no evidentiary hearing. No exhibits were received. The representative from the department reported, without being sworn, that Angela was in a foster home, was attending school in a different school district, and was doing everything asked of her. The department representative recommended keeping the current custody arrangement in place. The judge determined that the hearing was dispositional in nature, and although Angela had made significant improvement, past experience "remained relevant," and he wanted to ensure she would complete the current school year. The judge concluded that "the purposes of the [original] order had not yet been accomplished, and that continued placement — with its attendant school success — was reasonable." The judge "readjudicated" Angela a CHINS and extended for another six months the order placing custody of Angela with the department.³

Angela appealed, and we granted her application for direct appellate review.

Discussion. Angela argues that the "readjudication" hearing contemplated by the statute is a jury trial, and that the petitioner must prove beyond a reasonable doubt that the child continues to be in need of services. "The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). We first address the scope of hearing that is involved.

1. Scope of hearing. General Laws c. 119, § 39G, first par., provides for a "hearing to determine whether a child is in need of services [CHINS]." General Laws c. 119, § 21, defines a CHINS as "a child below the age of seventeen who persistently runs away from the home of his parents or legal guardian, or persistently refuses to obey the lawful and reasonable commands of his parents or legal guardian, thereby resulting in said parent's or guardian's inability to adequately care for and protect said child, or a child between the ages of six and sixteen who persistently and wilfully fails to attend school or persistently violates the lawful and reasonable regulations of his school." Section 39G, first par., requires an adjudication of CHINS be made by proof beyond a reasonable doubt. If a child is adjudicated a CHINS, G.L. c. 119, § 39I, affords a jury trial de novo.

Section 39G, first par., specifies the types of dispositional orders that a judge may make following a CHINS adjudication. The dispositional order is a determination that is made separate and apart from the CHINS adjudication. See R.L. Ireland, Juvenile Law § 154 (1993 & Supp.2004). Specifically, if the child requests a jury trial under § 39I, the jury make the adjudication of CHINS, but the judge makes the dispositional order.

Section 39G, third par., which is at issue in this appeal, states:

"Any order of disposition pursuant to this section shall continue in force for not more than six months; provided, however, that the court which entered the order may, after a hearing, extend its duration for additional periods, each such period not to exceed six months if the court finds that the purposes of the order have not been accomplished and that such extension would be reasonably likely to further those purposes."

Section 39G, third par., does not require any periodic "readjudication" of the child's status as a CHINS. The statute does not use the words "redetermination" or "readjudication." It merely provides for a hearing prior to an extension of the order of disposition. The statute limits the scope of the hearing under § 39G, third par., to whether the purposes of the dispositional order "have not been accomplished" and whether an "extension would be reasonably likely to further those purposes" (emphasis added). The purposes of the dispositional order include "(a) preventing delinquency involvement; (b) fostering the pursuit of education; and (c) providing support to families during periods of emotional turbulence." R.L. Ireland, Juvenile Law, supra at § 145. Whether the purposes of the dispositional order have not been accomplished is not determined by the misconduct that gave rise to the CHINS petition, but by the needs of the child.

This procedure is in sharp contrast with other statutes that specifically provide for periodic redetermination or readjudication of the underlying basis for continued commitment. See, e.g., Wyatt, petitioner, 428 Mass. 347, 354-355, 701 N.E.2d 337 (1998) (petition under G.L. c. 123A, § 9, to determine if person remains sexually dangerous); Thompson v. Commonwealth, 386 Mass. 811, 814, 438 N.E.2d 33 (1982) (petition for recommitment of mentally ill and dangerous persons under G.L. c. 123, §§ 8 [d], 15 [e]); Custody of a Minor (No. 1), 13 Mass.App Ct. 66, 430 N.E.2d 840 (1982) ("redetermination" under G.L. c. 119, § 26, of child's current needs in care and protection proceeding). Unlike most other commitment proceedings, where the person is committed to the care of an agency or a department of the State that then determines the treatment the person will receive and the basis for continued commitment is revisited periodically, the Juvenile Court retains control over the treatment of the child who is adjudicated a CHINS and the dispositional order is revisited periodically. The plain language of § 39G, third par., does not require a readjudication of a child's status as a CHINS, that is, whether the child continues to be a runaway, a stubborn child, or a truant. It requires an inquiry into whether the purposes of the dispositional order have not been accomplished and whether an extension of the order reasonably can further those purposes.

Although § 39G, third par., speaks only of the power to extend the dispositional order, it requires the judge to look to whether the purposes of the dispositional order have been accomplished when making the determination to extend the order. Implicit in this procedure is the power to modify the original dispositional order and any subsequent...