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SJC-12384

            MILLIS PUBLIC SCHOOLS   vs.   M.P. & others.1



         Norfolk.     October 2, 2017. - February 6, 2018.

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


Child Requiring Assistance.   Statute, Construction.    Words,
     "Wilfully."



     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.


    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


    1
        The mother and father of M.P.
                                                                        2


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, § 39G.

     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


     2
         Millis public schools did not participate in this appeal.
                                                                       3


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
                                                                    4


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
                                                                      5


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




     3
       Both the child and the parents or legal guardians have a
right to counsel at all stages of CRA proceedings. G. L.
c. 119, § 39F.
                                                                   6


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

     4
       These conditions include "provision for medical,
psychological, psychiatric, educational, occupational, and
social services, and for supervision by a court clinic or by any
public or private organization providing counseling or guidance
services." G. L. c. 119, § 39G.
     5
       The order of disposition is effective for 120 days, and
may be extended for three additional periods of up to ninety
days each. G. L. c. 119, § 39G. After that, a new hearing is
required. See Matter of Hilary, 450 Mass. 491, 493-494 (2008).
The disposition is no longer effective after the child's
eighteenth birthday. G. L. c. 119, § 39G.
                                                                   7


(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




     6
       The Juvenile Court judge's findings of fact omitted M.P.'s
diagnoses of anxiety disorder, OCD, and PTSD. These diagnoses,
however, were contained in both doctors' letters and in service
providers' notes, the same medical records upon which the judge
relied without qualification.
     7
       In May, 2017, one of M.P.'s doctors prescribed a new
bladder relaxation medication in the hopes of improving her
condition. The fact-finding hearing in this case took place in
the same month that this medication was prescribed; accordingly,
the record is silent as to the effectiveness of this medication.
                                                                    8


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


     8
       The judge noted that, while the child neurologist shared
her opinions in writing with M.P.'s school district in
February, 2017, "no neurological testing results, evaluation
information, data, or the like were shared with the school. It
is unclear whether any such neurological testing, evaluation,
etc. actually was conducted. [The child neurologist] provided
her opinion based on her review of the literature . . . [and
M.P.'s] medical and educational history combined with her one
appointment with the child [in December, 2016]." The judge did
not, however, express any doubt as to whether M.P. has autism,
nor does the record suggest any reason to doubt this diagnosis.
                                                                   9


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
                                                                     10


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

     9
       Although the school district initially enrolled M.P. as a
ninth grader for the 2016-2017 year, later that year she was
offered enrollment at Keough Memorial Academy, a special
education day school, as an eighth grader.
                                                                    11


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
                                                                     12


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 an illness and once for an appointment, but

otherwise for unknown reasons) and the home-based provider

canceled three (once due to weather conditions, once because of

M.P.'s health, and once because of "unclear . . .

expectations").

    Between April 5 and April 28, 2017, the home-based provider

did not schedule any appointments because the provider wanted to

meet M.P. in the morning, but the family wanted him to come in

the afternoon.    The provider testified, however, that M.P. never

said that she did not want to go to school; to the contrary,

M.P. communicated to him that she did want to attend.     By

May 1, 2017, M.P. had attended only eight shortened days at

Keough Memorial, for a total of 7.9 learning hours.     She

typically arrived near the end of the school day.

    As of April 20, 2017, M.P. also became eligible for

services with the Department of Developmental Services.       That
                                                                   13


month, the family arranged to have an applied behavior analyst

from an independent organization provide an initial assessment

of M.P.    In his initial report, the analyst noted that her

behavior "poses a serious risk to the health and wellbeing of

herself and her family," and that her behaviors and anxieties

had persisted and intensified despite her parents' provision of

several accommodations and modifications.     The analyst stated

that M.P.'s "challenging behavior" arose from pain and

discomfort due to complications regarding her bladder retention,

which was an "automatic" or "internal" function.

    As of the time of the fact-finding hearing, the analyst had

met with M.P. only a few times, but he stated that an applied

behavior analysis therapist would soon work with M.P. for

eighteen hours per week.    He anticipated that M.P. would need

treatment for from six months to one year.     He also explained

that M.P. conveyed on "many occasions" that "she's very excited"

to start the program and loves school; she had been crying daily

because of her inability to attend school.

    iii.    CRA proceedings.   On November 30, 2016, just a few

months after M.P.'s initial enrollment in the Millis public

schools, the school district filed a CRA petition, alleging that

M.P. was a child requiring assistance on the grounds that she

was habitually truant.     A Juvenile Court judge held a

preliminary hearing on December 14, 2016, and accepted the
                                                                  14


petition.10   The judge then scheduled a fact-finding hearing for

January 19, 2017, which was continued twice.   A two-day fact-

finding hearing took place on May 4 and 26, 2017.

     At the conclusion of the fact-finding hearing, the judge

found that M.P. was habitually truant and adjudicated her a

child requiring assistance.   The judge noted that, under the CRA

statute, a child's failure to attend school must be wilful,

which the judge defined as "acting intentionally, as opposed to

accidentally or involuntarily."   She concluded that

"[a]lthough . . . [M.P.'s] actions of failing to attend school

have been attributed to her medical conditions and emotional

challenges, they are still actions taken by the child not to

attend school."   The judge noted that none of M.P.'s assessments

indicated that she "was either home bound or unable to benefit

from an education," and that there was no evidence indicating

that M.P. should be exempt from school.

     The judge further found that M.P.'s parents "are now

working hard to obtain additional therapeutic services for their

daughter so that she can attend school."   She stated that

"[m]any of the therapeutic services assessed by the parents were

pursued after the commencement of this CRA petition, while the

home based therapeutic services offered by the school were not

     10
       The record does not provide the basis for the judge's
decision to accept the CRA petition.
                                                                    15


consistently utilized by the child or the parents."   Ultimately,

however, the judge decided that M.P. "appears to be receiving

appropriate services and no further services need be ordered at

this time," and did not alter M.P.'s custody arrangements.

Nonetheless, the judge stated that later dispositional review

would be necessary to determine whether the newly implemented

services, meaning the sessions with the applied behavior

analyst, were sufficient.    The judge also excused M.P. from

attending future hearings, noting that her time would be better

spent in school, rather than in the CRA hearings, which

"increase[d] her stress."

    M.P. appealed from the CRA determination to a single

justice of the Appeals Court, pursuant to G. L. c. 119, § 39I.

The single justice referred the case to a full panel of the

Appeals Court.    We then transferred the case to this court on

our own motion.   The school district did not participate in the

appeal.

    2.    Discussion.   There is no dispute that M.P. missed more

than eight days of school in each quarter of the 2016-2017

school year, and that most of her absences were not excused

"under the lawful and reasonable regulations of such child's
                                                                      16


school."11    See G. L. c. 119, § 21.   The question before us is

whether she "willfully fail[ed] to attend school."     Id.     This

court has not previously examined the meaning of this language.

We conclude that the CRA statute's habitual truancy provision

requires purposeful conduct by the child.     When the child's

repeated failure to attend school arises from reasons portending

delinquent behavior, it is wilful under the statute.

     a.   Plain meaning.   We review questions of statutory

interpretation de novo.    Massachusetts Insurers Insolvency Fund

v. Smith, 458 Mass. 561, 564–565 (2010).     In order to determine

what it means to "willfully fail[] to attend school," we turn

first to the plain meaning of the statutory language.        "Where

the language is clear and unambiguous, it is to be given its

'ordinary meaning.'"    Commonwealth v. Mogelinski, 466 Mass. 627,

633 (2013).    The plain meaning of a statute "must be reasonable

and supported by the purpose and history of the statute."        Id.,

quoting Wright v. Collector & Treas. of Arlington, 422 Mass.

455, 457–458 (1996).

     We look initially "to dictionary definitions as a guide to

a term's plain or ordinary meaning."     Commonwealth v. Samuel S.,

476 Mass. 497, 501 (2017).    One dictionary defines "willful" as

"done deliberately" or "intentional," and "not accidental or

     11
       M.P. does not challenge the lawfulness or reasonableness
of her school's regulations regarding truancy.
                                                                     17


without purpose."     Webster's Third New International Dictionary

2617 (1993).     According to Black's Law Dictionary, "willful"

means "[v]oluntary and intentional, but not necessarily

malicious."     Black's Law Dictionary 1834 (10th ed. 2014).

Black's Law Dictionary further states, however, that a

"voluntary act becomes willful in law, only when it involves

conscious wrong or evil purpose on the part of the actor, or at

least inexcusable carelessness, whether the act is right or

wrong."   Id.    Thus, some definitions focus on the actor's

purpose, while others focus only on whether the actor's conduct

was voluntary or intentional.

    Nor does wilfulness have a consistent meaning in our

jurisprudence.    In the adoption context, we have explained that,

while wilfulness implies intentional conduct, it does not

require ill will.     See Adoption of a Minor, 343 Mass. 292, 297

(1961) (statute permitting adoption without consent of parent

where parent wilfully deserts or neglects child "does not

require that the neglect to provide be done with malevolence or

ill will; it is enough if the conduct resulting in the failure

to provide was not unintentional").     In criminal cases, on the

other hand, we have held that conduct is wilful "when the actor

intends both the conduct and its harmful consequences."

Commonwealth v. Frith, 458 Mass. 434, 443 (2010), quoting

Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990).     See
                                                                  18


Commonwealth v. McDonald, 462 Mass. 236, 242 (2012).

Nonetheless, "in only a few select areas of law does 'willfully'

require a showing of an intent to violate a known legal duty."

Franklin Office Park Realty Corp. v. Commissioner of the Dep't

of Envtl. Protection, 466 Mass. 454, 456, 464 n.12 (2013)

(rejecting argument that wilfulness, as used in G. L. c. 21A,

§ 16 [administrative penalties act], requires knowledge that

"conduct will or may constitute a violation of applicable

environmental standards," and instead holding that wilfulness

only requires that "party who has not complied with the law knew

or should have known of the operative facts that made their acts

unlawful").

    The question remains, then, whether wilfulness under the

CRA statute's habitual truancy provision implies merely

voluntary or intentional conduct, or also necessitates inquiry

into a student's purpose in missing school.

    b.   Legislative history.     As the term "willfully" may have

several meanings when read in isolation, we turn to the broader

statutory context and legislative history of the CRA statute to

ascertain the intended meaning.    See Franklin Office Park Realty

Corp., 466 Mass. at 463 ("Although 'willful' may have several

meanings when read in isolation, its meaning in any particular

statute may be determined from examining the act itself as well

as the larger statutory scheme").
                                                                  19


     The habitual truancy provision dates back to 1873, when the

Legislature enacted a statute requiring each city and town in

Massachusetts to impose criminal penalties for "habitual

truants."   See St. 1873, c. 262 § 3 ("An Act concerning truant

children and absentees from school").   The legislation was

enacted in response to a report from the Board of Education,

which had collected numerous school committee reports

complaining of a lack of proper enforcement mechanisms to

address widespread truancy.12   See id.; Thirty-Sixth Annual


     12
       For example, the school committee of Barnstable noted
that four-fifths of the crimes in New England were committed by
those who had not been educated, and "[o]f juvenile offenders,
ninety-five hundredths [were] from ignorant and idle homes, and
a large number of them were truants from school at the time of
arrest." Thirty-Sixth Annual Report of the Board of Education,
Abstracts of School Committee Reports, at 3 (Jan. 1873).
Peabody's committee stated that the practice of sending truant
children to almshouses had done little to combat the growing
problem of truancy, and called for "habitual truants" to face
criminal sentences. Id. at 89-90. Salem's committee touted its
then recently enacted ordinance criminalizing truancy as a means
of deterrence. Id. at 94. Cambridge's committee, in turn,
attributed the majority of its truancy cases to the
"indifference, neglect or parsimony of parents," and stated that
"reformatory institutions" were better than almshouses for
addressing truancy. Id. at 121-122. Malden's superintendent of
public schools stated that truant children required greater
attention because other pupils "[were] led to imitate their bad
practices, and thus the evil [had] increased to no small
magnitude." Id. at 139. Wakefield's school committee stated
that "[i]gnorant boys [could] be seen every day in [the town's]
streets with nothing but mischief to occupy their time. Their
parents [were] too indifferent to their welfare, or too imbecile
to send them to school," and called for "strict enforcement" of
compulsory education. Id. at 147. Clinton's committee chairman
also called for trial judges to handle cases of truancy, noting
                                                                    20


Report of the Board of Education, Abstracts of School Committee

Reports (Jan. 1873).

     A century later, Governor Francis W. Sargent and others

recognized that to send habitual truants and other status

offenders "away from their homes to an institution which

deprives them of their liberty and individuality and, at times,

inflicts physical punishment and harassment, is to blame the

victims of society's neglect and to hinder their eventual

rehabilitation."    See F.W. Sargent, Letter to the Senate and

House of Representatives (Nov. 20, 1972), 1973 House Doc. No.

5593.   As then Governor Sargent explained, "we now know that

there is an alternative to institutionalization -- community

based treatment.    It is better for the child and better for the

taxpayers."   Id.

     Thus, the Legislature enacted the children in need of

services (CHINS) statute, the predecessor of the CRA statute, in

1973.   The CHINS statute decriminalized status offenses such as

truancy by removing them from the delinquency jurisdiction of



that its local truancy officer was ill-equipped to address the
problem. Id. at 202-203. Westborough's school committee
chairman attributed the problem of truancy to the indifference
of parents who were often "ignorant" themselves and advocated
for a "board of truant officers." Id. at 219. Worcester's
truant school committee also noted that its truant officer was
overburdened and that the children who were "not sent to school
at all" were those whom it considered the "children most sinned
against." Id. at 230.
                                                                   21


the Juvenile Court and tasking Juvenile Court judges with

providing "nonpunitive care to address the problem of certain

children."   See Florence F., 429 Mass. at 527, citing St. 1973,

c. 1073; Ireland & Kilcoyne, Juvenile Law § 4.2.    Notably, the

CHINS statute defined a "child in need of services" on the

grounds of truancy in almost the same language as does the

current CRA statute:   as a child who is "between the ages of six

and sixteen who persistently and wilfully fails to attend

school."   See 1973 Senate Doc. No. 1922; 1973 House J. 3941.

The statute's inclusion of habitual truants is consistent with

the Legislature's recognition that education is vital to a

child's progress.   See, e.g., Care & Protection of Charles, 399

Mass. 324, 335 (1987) ("[c]ompulsory school attendance laws and

the great expenditures for education both demonstrate our

recognition of the importance of education . . . .    It is the

very foundation of good citizenship.    Today it is a principal

instrument in awakening the child to cultural values, in

preparing him for later professional training, and in helping

him to adjust normally to his environment" [citation omitted]).

    CHINS proceedings were intended to target children who

"fall between the chairs, so to speak.    They are not the

dependent children who are clearly entitled to the full

protection of the [J]uvenile [C]ourt.    Neither are they law

breakers entitled to whatever firm or lenient treatment the law
                                                                  22


or individual judge feels appropriate for such offenders."

Florence F., 429 Mass. at 528, quoting In re Ronald S., 69 Cal.

App. 3d 866, 869 (1977).   The goals of the CHINS statute were

"(a) preventing delinquency involvement; (b) fostering the

pursuit of education; and (c) providing support to families

during periods of emotional turbulence."    Ireland & Kilcoyne,

Juvenile Law, supra at § 4.5.   See id. at § 4.1 ("the court's

approach is that through the provision of certain rehabilitative

or preventive services . . . the child will be diverted from the

tendency to engage in future delinquent behavior").

     The CHINS statute was significantly amended in 2012, when

it was reformulated as the CRA statute, but the overarching

purpose of the statute did not change.     The 2012 amendments were

enacted in response to the Legislature's recognition of the

CHINS statute's failure to "[keep] children out of the juvenile

justice system as the [L]egislature intended."     See Press

Release, Governor Patrick Signs Legislation to Reform Children

in Need of Services System (Aug. 7, 2012).    The amendments

sought to achieve this goal by making proceedings less

adversarial, and to "divert cases from the courts into a system

of community-based service providers."13    Senate OK's Changes on


     13
       The amendments provided for the establishment of a system
of community-based resources and assistance to families to
coordinate screenings, assessments, and referrals, and required
                                                                 23


Runaways, Truants, State House News Service, July 15, 2011.     The

CRA statute treats involvement of the Juvenile Court system as

something of a last resort.   See G. L. c. 119, § 39E (before CRA

petition is filed, "the clerk shall inform the petitioner that

the petitioner may delay filing the request and choose to have

the child and the child's family referred to a family resource

center, community-based services program or other . . .

community-based services in the [J]uvenile [C]ourt district

where the child resides and return to court at a later time to

file an application for assistance, if needed"; clerk also is

required to "prepare, publish and disseminate to each petitioner

educational material relative to available family resource

centers, community-based services programs and other entities

designated by the [S]ecretary of [H]ealth and [H]uman

services").

    Proponents of the CRA statute reasoned that "the current

studies suggest[ed] that children . . . who are regularly



school districts to establish truancy prevention programs for
habitually truant students before referring them to the Juvenile
Court. See R.L. Ireland & P. Kilcoyne, Juvenile Law § 4.1
(Supp. 2017). The revisions also made CRA proceedings
confidential; adjusted the adjudication procedures by, inter
alia, removing the provisions for a jury trial; and provided
that, where a child was in need of assistance, he or she no
longer could be placed with the Department of Youth Services or
shackled and restrained in a delinquent juvenile facility, but
could be placed with the Department of Children and Families.
See id.
                                                                    24


exposed to the courts are more likely to be involved in serious

crimes later in life."    Senate OK's Changes on Runaways,

Truants, supra.    See Lawmakers, Advocates Urge Overhaul of Child

Services System, State House News Service, Mar. 30, 2011

("Arguing that the [S]tate's [thirty-eight year old] system of

services for troubled children forces them into the court system

prematurely and can tear families apart, lawmakers and advocacy

groups called yesterday for an overhaul of the system"); State

House Rally Calls for Children's Services Reform, MetroWest

Daily News, June 28, 2012; Politicians Push for New Way to Deal

with Troubled Kids, MetroWest Daily News, Mar. 30, 2011 (Reis)

("Advocates, parents and graduates of Children in Need of

Service argue early court involvement can push adolescents into

a life of crime").    Although CRA determinations are not entered

on children's juvenile records, see G. L. c. 119, § 39E,

proponents noted that the mere fact of children's involvement

with the Juvenile Court stigmatizes them and makes them "more

likely to be involved in serious crimes later in life."      See

State Capitol Briefs, State House News Service, July 14, 2011.

See, e.g., Lawmakers Push New System to Serve Troubled Kids,

State House News Service, Oct. 6, 2009; Politicians Push for New

Way to Deal with Troubled Kids, supra.

    As Senator Karen Spilka, the lead Senate sponsor of the CRA

bill, explained:
                                                                   25


         "[The CHINS statute] began with good intentions. Its
    goal was to prevent children from entering the juvenile
    justice system. But the irony of this is that the court
    system was telling parents and families to go to this
    system, so we were sending messages that didn't make sense.
    We heard time and time again after many meetings that
    parents and children should not have to go to court to get
    services. The second thing we were hearing was focusing on
    the children's behavior, and this was an adversarial
    system. This was not bad for all families but it tore a
    lot of them apart. . . . The third thing was that each
    community needs to have services available for children[]
    and families; this is faster, easier, and resolves issues
    more quickly. . . . This bill removes labels from children
    and removes stigma from them . . . . [T]hat is a wonderful
    thing."

2011 House Doc. No. 3492, Senate Floor Debate, July 12, 2011.

    Therefore, as with the CHINS statute, the purpose of the

CRA statute is to "address the root causes of juvenile

delinquency."    State House Rally Calls for Children's Services

Reform, supra.   The legislative history and statutory scheme as

a whole demonstrate that in order to determine whether a child

has "willfully fail[ed] to attend school," a Juvenile Court

judge must examine the child's purpose or reasons for being

absent, so that the judge can decide whether the student's

behavior arises from reasons portending delinquent behavior.

    c.   Authority in other jurisdictions.    Nearly every State

has a statute authorizing courts or law enforcement officers to

intervene in the custody arrangements of children who are in

need of services or supervision because, inter alia, they have

run away from home, are truant, are beyond the control of their
                                                                 26


parents or guardians, or otherwise are jeopardizing their own

welfare or that of others.14   Although most of these statutes



     14
       See, e.g., Ala. Code §§ 12-15-201(4), 12-15-215; Alaska
Stat. §§ 47.10.011, 47.10.142(e); Ariz. Rev. Stat. Ann. §§ 8-
201(19), 8-341(A)(2), 15-803(B); Ark. Code Ann. §§ 9-27-303(24),
9-27-322; Cal. Welf. & Inst. Code § 601; Conn. Gen. Stat.
§§ 46b-120(5), 46b-149; Del. Code Ann. tit. 10, § 921(6)(b);
D.C. Code §§ 16-2301(8), 16-2320(c); Fla. Stat. §§ 984.03(9),
984.22(2); Ga. Code Ann. §§ 15-11-2(11), 15-11-381, 15-11-442;
Haw. Rev. Stat. § 571-11(2)(B)-(D); Idaho Code Ann. § 20-505;
705 Ill. Comp. Stat. 405 / §§ 3-3, 3-24, 3-33.5; Ind. Code
§§ 31-34-1-6, 31-34-20-1; Kan. Stat. Ann. §§ 38-2022(d), 38-
2253; Ky. Rev. Stat. Ann. §§ 159.150, 630.020, 630.120; La.
Child. Code Ann. arts. 728, 730, 779; 15 Me. Rev. Stat. § 3501;
Md. Code Ann., Cts. & Jud. Proc. § 3-8A-01(e), 3-8A-19; Mich.
Comp. Laws § 712A.2(a)(4); Minn. Stat. §§ 260C.007(6), 260C.201;
Miss. Code Ann. §§ 43-21-105(k), 43-21-607; Mo. Rev. Stat.
§ 211.031; Mont. Code Ann. §§ 41-5-103(22), (51), 41-5-1512;
Neb. Rev. Stat. § 43-247; Nev. Rev. Stat. § 62B.320; N.H. Rev.
Stat. Ann. §§ 169-D:2(II), 169-D:17; N.J. Stat. Ann. §§ 2A:4A-
83, 2A:4A-89; N.M. Stat. Ann. §§ 32A-3B-2, 32A-3B-16; N.Y. Fam.
Ct. Act § 712(a), 754; N.C. Gen. Stat. §§ 7B-1501(27), 7B-2503;
N.D. Cent. Code §§ 27-20-02(19), 27-20-32; Ohio Rev. Code Ann.
§§ 2151.022, 2151.354; 2017 Okla. Sess. Laws c. 254 (S.B. 718)
(enacted 2017); Or. Rev. Stat. § 419B.100; 42 Pa. Cons. Stat.
§§ 6302 ("[d]ependent child"), 6351; R.I. Gen. Laws §§ 14-1-
3(9), 14-1-32; S.C. Code Ann. §§ 63-19-20(9), 63-19-1440; S.D.
Codified Laws §§ 26-8B-2, 26-8B-6; Tenn. Code Ann. §§ 37-1-
102(26), 37-1-132; Tex. Fam. Code Ann. §§ 51.02(15), 51.03(b),
54.05; Utah Code Ann. §§ 53A-11-101, 78A-6-103, 78A-6-105(18);
Vt. Stat. Ann. tit. 33, §§ 5102, 5318; Va. Code Ann. §§ 16.1-228
("[c]hild in need of services"), 16.1-278.4, 16.1-278.6; Wash.
Rev. Code §§ 43.185C.260, 28A.225.030; W. Va. Code §§ 49-1-202
("[s]tatus offender"), 49-4-712; Wyo. Stat. Ann. §§ 14-6-
402(a)(iv), 14-6-429. Colorado had similar provisions, which
have since been repealed. Colo. Rev. Stat. § 19-1-103(5),
(20)(f), repealed by Laws 1994, S.B. 94-21, § 1 (effective July
1, 1997). The Wisconsin and Iowa statutes concerning children
in need of services or supervision only cover children who are
the subject of abandonment, abuse, or neglect, rather than those
who are deemed to be engaging in improper or injurious behavior.
See Iowa Code §§ 232.2(6), (20), 232.102; Wis. Stat. § 48.13.
                                                                27


include provisions on truancy,15 only Massachusetts and five

other States (Michigan, Mississippi, New Hampshire, Oklahoma,

and Rhode Island) have statutory language that expressly

includes a wilfulness component in the truancy provision.16


     15
       See, e.g., Ala. Code § 12-15-201(4); Ariz. Rev. Stat.
§ 8-201(19)(b); Ark. Code Ann. § 9-27-303(24)(A); Cal. Welf. &
Inst. Code § 601; Conn. Gen. Stat. § 46b-120(5); D.C. Code § 16-
2301(8)(A)(i); Fla. Stat. § 984.03(9); Ga. Code Ann. § 15-11-
2(11); Haw. Rev. Stat. § 571-11(2)(C); 705 Ill. Comp. Stat. 405
/ § 3-33.5; Kan. Stat. Ann. § 38-2022(d)(6); Ky. Rev. Stat. Ann.
§§ 159.150, 630.020(3); La. Child. Code Ann. art. 730(1); Md.
Code Ann., Cts. & Jud. Proc. § 3-8A-01(e)(1); Mich. Comp. Laws
§ 712A.2(a)(4); Minn. Stat. § 260C.007(6)(14), (19); Miss. Code
Ann. § 43-21-105(k)(ii); Mo. Rev. Stat. § 211.031(1)(2)(a);
Mont. Code Ann. § 41-5-103(22), (51); Neb. Rev. Stat. § 43-
247(3); Nev. Rev. Stat. § 62B.320(1)(a); N.H. Rev. Stat. Ann.
§ 169-D:2(II)(a); N.M. Stat. Ann. § 32A-3B-2(A); N.Y. Fam. Ct.
Act § 712(a); N.C. Gen. Stat. §§ 7B-1501(27)(a), 7B-2503; N.D.
Cent. Code § 27-20-02(19); Ohio Rev. Code Ann. §§ 2151.022,
2151.354; 2017 Okla. Sess. Laws c. 254 (S.B. 718); 42 Pa. Cons.
Stat. § 6302; R.I. Gen. Laws §§ 14-1-3(9), 14-1-32; S.C. Code
Ann. § 63-19-20(9); S.D. Codified Laws § 26-8B-2(1); Tenn. Code
Ann. § 37-1-102(26)(A); Tex. Fam. Code Ann. § 51.02(15)(C); Utah
Code Ann. §§ 53A-11-101, 78A-6-103(1)(i), 78A-6-105; Vt. Stat.
Ann. tit. 33, §§ 5102(3)(D), 5318; Va. Code Ann. § 16.1-228;
Wash. Rev. Code §§ 43.185C.260, 28A.225.030(4); W. Va. Code
§ 49-4-712; Wyo. Stat. Ann. § 14-6-402(a)(iv).
     16
       Mass. G. L. c. 119, § 21 ("[c]hild requiring assistance"
includes one who is "habitually truant," meaning he or she
"willfully fails to attend school for more than [eight] school
days in a quarter"); Mich. Comp. Laws § 712A.2(a)(4) (family
court has jurisdiction over, inter alia, juvenile who "willfully
and repeatedly absents himself or herself from [a] school or
other learning program intended to meet the juvenile's
educational needs"); Miss. Code Ann. § 43-21-105(k)(ii)
("[c]hild in need of supervision" includes one who "willfully
and habitually absents himself" from school); N.H. Rev. Stat.
Ann. § 169-D:2(II)(a) ("[c]hild in need of services" includes
one "[w]ho is subject to compulsory school attendance, and who
is habitually, willfully, and without good and sufficient cause
                                                                  28


     Notwithstanding the absence of a wilfulness component in

their comparable statutes, Minnesota and New York have, in turn,

interpreted their truancy provisions to require purposeful

conduct.   See Matter of the Welfare of B.K.J., 451 N.W.2d 241,

243 (Minn. App. 1990); Matter of Simon v. Doe, 165 Misc. 2d 379,

380-381 (N.Y. Fam. Ct. 1995).   For example, the Minnesota

Supreme Court has determined that under its "child in need of

protection or services" framework, "[t]ruancy implies volitional

conduct on the part of the child for which the child is

responsible."   Matter of the Welfare of B.K.J., supra.   Thus, a

"child who is absent from school in obedience to a parent's

wrongful command should not be stigmatized or confused by an

unwarranted truancy label."17   Id.   By inquiring whether the



truant from school"); 2017 Okla. Sess. Laws c. 254(8)(c) (S.B.
718) ("[c]hild or juvenile in need of supervision" includes one
who is "willfully and voluntarily absent from school"); R.I.
Gen. Laws § 14-1-3(9) ("[w]ayward" child includes one who is
required to attend school and "willfully and habitually absents
himself or herself from school"). Michigan has further held
that a child's absences are not wilful, as required by its
truancy statute, where they are attributable to illness and fear
of bullying, as "Michigan courts must infer a criminal intent
for every offense in the absence of an express or implied
[l]egislative intent to dispense with criminal intent" (citation
omitted). In re Napieraj, 304 Mich. App. 742, 747-748 (2014).
     17
       See Matter of Simon v. Doe, 165 Misc. 2d 379, 380-381
(N.Y. Fam. Ct. 1995) (New York's "person in need of supervision"
statute requires "[an] intentional failure to attend school" for
purposes of truancy; therefore, child with extreme anxiety-based
school phobia who was not attending school was not in need of
supervision because her will was "overborne by anxiety").
                                                                  29


child is responsible for his or her own conduct, and not simply

whether the child is acting intentionally, Minnesota's

instructive approach seeks to ascertain the underlying reason

for the child's absences.

     d.    Wilfulness under the CRA statute.   In order to

effectuate the Legislature's goals, the phrase "willfully fails

to attend school," as used in the CRA statute's habitual truancy

provision, must require more than voluntary or intentional

conduct.   The primary concern of the truancy provision is to

target children who are, for instance, "playing hooky" or beyond

their parents' control.     Cf. Matter of the Welfare of L.Z.,

C.R.P., & S.L.P., 396 N.W.2d 214, 218 (Minn. 1986) ("The classic

case of truancy is the child sent to school by his parents, who

then skips").   We conclude that a child "willfully fails to

attend school" when he or she acts purposefully, such that his

or her behavior arises from reasons portending delinquent

behavior.18   Ascertaining the child's purpose in failing




     The Vermont Supreme Court declined to adopt Minnesota's
approach because it determined that the language of the Vermont
statute defining a truant as one who, "being subject to
compulsory school attendance, is habitually and without
justification truant from school," did not imply a volitional
element. See Matter of A.V., S.T., A.C., & E.V., 176 Vt. 568,
571 (2003).
     18
        Even in such cases, the intervention and other services
contemplated under the CRA statute may be a more effective
method of changing the child's behavior than bringing the child
                                                                  30


repeatedly to attend school allows the court to focus on whether

the behavior is such that it can and should be deterred, and on

whether the child's home circumstances are such that the court

should change, or place conditions on, the child's custody

arrangements.   See G. L. c. 119, § 39G (choices available to

Juvenile Court judge in CRA proceedings concern only custody,

and provision of services may be merely conditions of custody).

See also Oscar F. v. County of Worcester, 412 Mass. 38, 41

(1992) (statute "is concerned with social and family problems.

It does not make the kind of education that a child receives a

central judicial concern").

    We emphasize that a finding of wilfulness is a fact-based

inquiry that will depend on the circumstances of each case.     Not

every case involving a mental or physical disability necessarily

will shield a child from a finding of wilfulness, since not

every disability affects a child's ability to attend school.

Each child's purpose or reasons for missing school should be

examined individually in order to determine whether the absences

are wilful beyond a reasonable doubt.   Given their experience

with juveniles and with delinquency matters, Juvenile Court

judges are uniquely situated to assess whether the child's


into court. The design of the CRA statute, with its emphasis on
community-based resources, indicates that the Legislature
envisioned a deliberate set of escalating measures, in which
court intervention would be the last alternative.
                                                                   31


reasons for regularly missing school are of the concerning

nature that would portend delinquency and call for deterrence.

     e.    Application to M.P.    With this definition in mind, the

evidence in the record does not support a finding beyond a

reasonable doubt that M.P. "willfully fail[ed] to attend

school."   Even assuming that the judge correctly determined that

M.P.'s acts of staying home were voluntary or intentional, it is

uncontested that her purpose was to address her bladder

condition and associated mental and emotional impairments.

While M.P. was not "home bound" per se, nor exempt from school,

nothing of record suggests that M.P.'s behavior exhibited

problems or tendencies that could lead toward juvenile

delinquency.   To the contrary, the Juvenile Court judge

acknowledged that M.P. desired to go to school, and it is

undisputed that M.P. was saddened by her inability to do so.

Even during the short period when she established a routine with

the in-home service provider, M.P.'s bladder condition still

interfered with her ability to leave the house.

     Nor do the judge's findings and the record show that a

modification of her custody arrangements would help improve

M.P.'s attendance record.19      Cf. Matter of Benjamin A., 2011 N.Y.


     19
       If, unlike here, a child's absences were the result of
parental neglect such that the child's truant behavior was not
found to be wilful, the child could not be adjudicated a child
                                                                    32


Slip Op. 52217, at n.14 (N.Y. Fam. Ct. Oswego County Sept. 26,

2011) (unreported) ("Even if the Court could find otherwise, a

[person in need of services] label is not going to get Benjamin

to school.   All the services he needs to be successful are

available to him through the school district and diversion

services.    If those services do not . . . work and Benjamin does

not attend school, what could this Court do but remove[] him

from his family and place him into an ill-prepared and

overworked juvenile justice system").

    We note that an incorrect CRA adjudication is not without

consequences.   Even where, as here, there is no change in

custody, such a finding can be harmful in at least two respects.

First, CRA proceedings could affect parents' custodial rights in

the future; courts have considered such proceedings in care and

protection cases when terminating parental custody.    See, e.g.,



requiring assistance by virtue of habitual truancy and the
matter of appropriate custodial arrangements accordingly could
not be addressed pursuant to that statute. That being said,
however, the matter of parental neglect and custodial
arrangements for the child may be addressed in care and
protection proceedings brought in the Juvenile Court pursuant to
G. L. c. 119, §§ 24, 26. Such proceedings may be brought on
behalf of a child who "(a) is without necessary and proper
physical or educational care and discipline; (b) is growing up
under conditions or circumstances damaging to the child's sound
character development; (c) lacks proper attention of the parent,
guardian with care and custody or custodian; or (d) has a
parent, guardian or custodian who is unwilling, incompetent or
unavailable to provide any such care, discipline or attention."
G. L. c. 119, § 24.
                                                                    33


Care & Protection of Sam, 87 Mass. App. Ct. 1106 (2015);

Adoption of Odessa, 76 Mass. App. Ct. 1118 (2010).     Second, as

discussed, the CRA statute was amended specifically to minimize

children's exposure to the Juvenile Court unless court

involvement is necessary, in order to prevent the stigma and

other negative consequences of premature court involvement.      In

this case, the evidence showed that the CRA proceedings worsened

M.P.'s condition and increased her anxiety, stress, and

sadness.20

     The evidence of record does not support a finding beyond a

reasonable doubt that M.P. "willfully fail[ed] to attend

school."     Accordingly, the judgment must be vacated and set

aside.    The matter is remanded to the Juvenile Court for entry

of an order dismissing the CRA petition.

                                      So ordered.




     20
       We note that the Bureau of Special Education Appeals may
have been a more appropriate venue in this case to ensure that
M.P. was receiving an adequate education. See G. L. c. 71B,
§ 2A. This administrative body has authority to provide
"adjudicatory hearings, mediation and other forms of alternative
dispute resolution" concerning "any matter relating to the
identification, evaluation, education program or educational
placement of a child with a disability or the provision of a
free and appropriate public education to the child." Id.
