MASSACHUSETTS LAW - IS THE CHILD IN NEED OF ASSISTANCE OR IS THE PARENT NEGLECTFUL

Mass, GL 119, s 21 states in part: "''Child requiring assistance'', a child between the ages of 6 and 18 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."

One must always ask, however and IMHO, whether these acts by the child are attributable solely to the child or is it attributable to possible abuse or neglect. In New York, the court has the power to convert the CRA (in NY it is called Person In Need of Supervision or PINS) to an abuse or neglect (in MA it is called a Care and Protection). Instructive is BEEKMANTOWN SCH DIST v. John, 69 Misc. 3d 888 - NY: Family Court 2020:

"On July 16, 2020, the Beekmantown Central School District filed an amended verified petition alleging that John is a person in need of supervision (PINS), as that term is defined by Family Court Act § 712(a). On August 6, 2020, upon respondent's admissions, the court found that John, while under 18 years of age, did not attend school in accordance with the provisions of part I of article 65 of the Education Law; and was incorrigible, ungovernable or habitually disobedient and beyond the lawful control of the Beekmantown Central School District. On September 29, 2020, the Clinton County Probation Department submitted its PINS predispositional investigation report in this matter which contains the following information.

John stated that "due to issues at home" he previously did not want to be around other children and therefore, acted out on several occasions so that he would be taken out of his class. Mary S., who has primary physical custody of John, stated that "a few years ago" her longtime paramour turned "mean" and there was ongoing domestic violence issues in the home. Ms. S. apparently did not take any action to resolve the domestic violence issues in John's home until February of this year. Thus, it appears that for an extended period of time, Mary S. allowed John to be exposed to domestic violence and such exposure negatively impacted John's school behavior. Indeed, according to Ms. S. herself, John's PINS behaviors were mainly due to his inability to cope with the domestic violence issues that were present in her home.

From December of 2018 through February of 2020, the Clinton County Department of Social Services indicated three CPS investigations against Mary S. for educational neglect due to Ms. S.'s failure to send "children" to school. It appears that 890*890 Ms. S.'s educational neglect of John continued through June 2020. John failed to participate in remote learning from March 16, 2020, until June 16, 2020, which, at least in part, resulted in John failing all of his 2019-2020 classes except studio art and physical education.

Beekmantown Central School District made several referrals for preventive services regarding John, but "they were not accepted by the family." In March of 2020, an intake appointment was scheduled for John with Behavioral Health Services North, Inc.; however, Ms. S. and John failed to appear and engage in services with that agency. The Department of Social Services recommended adolescent parenting classes for Ms. S., but Ms. S. never engaged in those classes.

If the information contained in the predispositional report is accurate, a valid neglect petition regarding John could be filed against Mary S. Given Ms. S.'s own position that John's behavior is attributable to his home environment, the court finds that justice would be served by the pursuit of a neglect petition against Ms. S. rather than a PINS determination against John. (See Matter of R.L. v A.J., 50 Misc 3d 1083, 1085 [Fam Ct, Kings County 2015] [noting that Family Ct Act § 716 "reflects a recognition by the Legislature that some children who are `in need of supervision' often are `neglected' and are better treated that way" (citation omitted)], quoting Matter of Paul H., 47 AD2d 853, 854 [2d Dept 1975].) Similarly, the court finds that under the circumstances presented, the purpose underlying the Family Court Act, which can generally be described as seeking to achieve a disposition which serves the best interests of the subject child, would not be served by the pursuit of a PINS proceeding and the potential "stigma" that might attach to John as a result, especially where, as here, John's behaviors appear attributable to his home environment. (R.L. v A.J., 50 Misc 3d at 1089.) Accordingly, pursuant to Family Ct Act § 716, the court will substitute a neglect petition for the pending PINS petition.

Exactly what substitution within the meaning of the statute entails, and procedurally how the case advances from here, is not specified in the statute and has not been clarified by the courts. (See generally Merril Sobie & Gary Solomon, New York Family Court Practice § 11:14 [2d ed 10 West's NY Prac Series 2020] [describing the procedural options available to the court in considering an application of Family Ct Act § 716]; see also Matter of Tad M., 123 Misc 2d 1071, 1072-1073 [Fam Ct, 891*891 Richmond County 1984] [discussing what the term "substitution" under Family Ct Act § 716 means and the lack of specific guidance on this subject].) The court cannot simply change the caption of the petition and name Mary S. as the respondent. If only that action was taken, the petition would not allege a prima facie case for neglect against Ms. S. Furthermore, the court could not simply make a neglect finding against her without a valid Family Ct Act article 10 petition being filed against her. Without a valid petition, such a finding would violate her due process rights. (Merril Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 716 at 33 [2010 ed] [noting that simply substituting a neglect finding for a PINS finding, as was done in Matter of Leif Z. (105 Misc 2d 973 [Fam Ct, Richmond County 1980]), "raises serious and probably insurmountable due process issues, such as the right to notice and the right to be represented by counsel"].) The court could order the local Department of Social Services to conduct an investigation pursuant to Family Ct Act § 1034; however, such an order would not necessarily lead to the filing of a neglect petition. Furthermore, such report is unlikely to contain any information beyond the information contained in the predispositional investigation report and it appears, from the indicated reports, that the Department of Social Services is already aware of the evidence of neglect.

In order to give meaning to Family Ct Act § 716, and to protect Ms. S.'s due process rights, the court concludes that the term "substitute" in the context of Family Ct Act § 716 requires the filing of a new valid article 10 petition. While the court has the authority to authorize anyone to file an article 10 petition pursuant to Family Ct Act § 1032, the court finds that it would serve both the interest of justice and the administration of justice to require the Clinton County Department of Social Services to file such a petition. (See Matter of Gage II. [Rachel JJ.], 156 AD3d 1208, 1210 [3d Dept 2017]; Matter of Johnson v Johnson, 279 AD2d 814, 817 [3d Dept 2001] [holding that under appropriate circumstances, court may direct the filing of a Family Ct Act article 10 petition].) The department is experienced in this area of law and provided the Probation Department with a great deal of the information referenced above.

Accordingly, it is hereby ordered, pursuant to Family Ct Act § 716, that a Family Court Act article 10 petition be substituted for the pending petition in this action; and it is further ordered that the Clinton County Department of Social Services file an 892*892 article 10 petition that alleges a prima facie case against Mary S. on or before October 5, 2020; and it is further ordered that upon the filing of the article 10 petition, the instant petition shall be deemed dismissed."