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Millis Public Schools v. M.P.

Supreme Judicial Court of Massachusetts, Norfolk

February 6, 2018

M.P. & others. [1]

          Heard: October 2, 2017.

         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.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          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 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, § 3 9G.

         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 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 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 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 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 (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 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 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 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 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 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 ...

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