MASSACHUSETTS LAW - CRA AND THE DELINQUENT CHILD

 

Commonwealth v. DARNELL D., No. 15-P-1175, Mass: Appeals Court 2016:

"MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

The juvenile appeals his commitment to the Department of Youth Services (DYS) based on a violation of his probation, as well as the denial of his motion for reconsideration. For the reasons that follow, we affirm.

Background.^[1]

On January 28, 2014, the juvenile was arraigned in the Norfolk County Division of the Juvenile Court Department on a charge of shoplifting in violation of G. L. c. 266, § 30A. On April 2, 2014, he admitted to sufficient facts to warrant an adjudication of delinquency; the judge ordered the entry of a continuance without a finding (CWOF), and placed the juvenile on administrative probation for approximately four months. The conditions of his probation included that he cooperate "with Department of Children and Families [DCF] Service Plan/Placement," and that he report to probation as his probation officer required.

Although the timing is not clear from the record, we may infer that the juvenile was receiving services from DCF as a result of a separate case in the Plymouth County Division of the Juvenile Court Department. The juvenile was a habitual runaway who would leave home on Fridays and not return until Sunday evening. The juvenile's father had no idea of the juvenile's whereabouts and was concerned for his safety. The juvenile's father therefore applied for a Child Requiring Assistance (CRA) petition. See G. L. c. 119, § 39E. Despite the issuance of the petition, the juvenile continued to run away from home. The juvenile's father eventually asked DCF to assume custody of the juvenile, which it did — first informally, and later by court order.

On July 2, 2014, a notice of probation violation was issued in the juvenile's shoplifting case. A few weeks later, on July 23, a judge found the juvenile in violation. The resulting disposition was that the juvenile was placed in a DCF "STARR" shelter for stabilization services, and his probation was extended on the same terms by two and one-half months, to October 22, 2014.

On August 20, 2014, DCF returned the juvenile to his father's home. In conjunction with his return, the juvenile, his father, and a DCF social worker signed a "safety contract" which, among other things, required the juvenile to inform his father of his whereabouts at all times and to abide by an 8:00 P.M. curfew. Nevertheless, within only two days, the juvenile again ran away from home. His whereabouts remained unknown for more than four months, during which time his social worker made extensive efforts to locate him. The social worker filed a missing person report, checked parks and local businesses that the juvenile was known to frequent, and posted flyers. At least once, via text message, the social worker arranged to meet the juvenile, but the juvenile failed to arrive at the designated meeting place.

The juvenile remained on the run until December 30, 2014, when he was brought to court. After a hearing on January 14, 2015, the judge found the juvenile in violation of the conditions of his probation, adjudicated him delinquent, and committed him to DYS until the age of eighteen. The juvenile later filed a motion for reconsideration, which the judge denied.

Discussion.

The juvenile first asserts that his commitment was based on the "status offense" of running away, and was the equivalent of an impermissible commitment for contempt in his CRA case. However, his adjudication as delinquent and commitment to DYS resulted from his failure to comply with the probation conditions of the CWOF in his criminal shoplifting case.^[2] The juvenile's probation conditions included reporting to his probation officer as required, and cooperating with the terms of his DCF "service plan/placement," including the safety contract. As it was beyond dispute that the juvenile did not abide by these conditions, the judge was entitled to find the juvenile in violation of probation, and to make any disposition of the case that could have been made before he was placed on probation, including committing him to DYS. See G. L. c. 119, § 59. See also Jake J. v. Commonwealth, 433 Mass. 70, 74-76 (2000).

The juvenile's second argument is that the judge should not have committed him to DYS without first attempting a more gradual, intermediary remedy, such as imposing supervisory probation or requiring him to wear a global positioning system device.^[3] We review the judge's commitment order for abuse of discretion. See Commonwealth v. Avram A., 83 Mass. App. Ct. 208, 214 (2013); Commonwealth v. Malick, 86 Mass. App. Ct. 174, 178 (2014).

The record reflects that the judge thoughtfully and thoroughly considered the appropriate disposition. While she noted that the shoplifting offense was "not relatively serious," she specifically found that the juvenile had placed himself at great risk and was not a candidate for further probation. The judge was mindful that rehabilitative efforts short of commitment to DYS already had been attempted. After the juvenile's first probation violation, probation was extended, and more services were made available to him. He received an intermediate disposition of a temporary short-term placement in a "STARR" bed, but only two days after being permitted to go home, ignored the safety contract to which he had agreed and ran away from his father's residence. Given the apparent ineffectiveness of less drastic efforts, as well as the safety concerns attendant to runaway juveniles, the judge was amply justified, and committed no abuse of discretion, in committing the juvenile to the custody of DYS.

Order revoking probation and imposing sentence affirmed.

Order denying motion for reconsideration affirmed.

[4] The panelists are listed in order of seniority.

[1] We take the facts from the judge's findings and from court documents in the record appendix.

[2] The juvenile uses the term "status offense" in the same sense that the term "status offender" is defined in Federal regulations, i.e., a juvenile offender who has been adjudicated for "conduct which would not . . . be a crime if committed by an adult." 28 C.F.R. § 31.304(h) (2014). Shoplifting is a criminal offense for both minors and adults. See G. L. c. 266, § 30A.

[3] The juvenile supports his argument with citation to the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA), 42 U.S.C. §§ 5601 (1998). The JJDPA sets conditions for Federal funding of State juvenile programs. See Commonwealth v. Florence F., 429 Mass. 523, 527 & n.7 (1999). It does not, by its terms, restrict the exercise of discretion of a Juvenile Court judge. Regardless, the judge's handling of the juvenile's case, which, in fact, included gradual remedies, was entirely consistent with the policies of the JJDPA."