Youth with Undiagnosed or Mistreated Disabilities

Section 1.11

Judicial, Legal, Law Enforcement, Justice, Social Service and School Professionals Ensure Children Do Not Enter the Status Offense System Because of Learning, Mental Health, Sensory, Speech/Language or Co-occurring Disabilities

Judicial, legal, law enforcement, justice, social service and school professionals working with youth alleged to have committed status offenses and their families should ensure that children with disabilities who do enter the status offense system are treated fairly and given access to needed evaluations, treatments and services.

Often the conduct that leads to status offense system involvement relates to an unknown, under diagnosed or mistreated disability.  For example, unmet special education needs can lead to truancy; untreated mental health issues can lead to conflicts at home and/or running away.  In addition, research shows that youth with learning and other disabilities are more likely to enter the justice system. Some estimate that as many as 70% of youth who enter the justice system have a mental health, sensory or learning disability, and anywhere between 28 percent and 43 percent of detained or incarcerated youth have special education needs.¹  Minority youth may be disproportionately affected by learning disabilities, in particular, because of risk factors relating to poverty and family functioning.  African American youth are 43 percent more likely to have a learning disability than youth in the general population and American Indian youth are 80 percent more likely.²  Implementing and coordinating early screening, assessment and intervention strategies before court involvement is key to providing needed supports to children and families and limiting or avoiding unnecessary court involvement.

There are many federal laws that protect the rights of children and youth with disabilities. Section 504 of the Rehabilitation Act (Section 504) entitles all children who have disabilities to an educational experience that is comparable to children who do not have disabilities. The Individuals with Disabilities Education Act (IDEA) requires that children with certain learning-related disabilities have a free, appropriate public educational experience in the least restrictive environment possible.³  IDEA also supports the notion that juvenile court intake personnel investigate pre-court efforts to identify and address a child’s special education needs and ensure that referring systems provide information on accommodations offered.⁴

Before school system, mental health system or other social service system professionals refer children with identified or suspected disabilities to the status offense system, they must assess whether the conduct at issue relates to or is caused by the disability.  System professionals should use the resources at their disposal through IDEA, Section 504 and/or Medicaid-EPSDT⁵ to identify the extent of the disability and provide relevant services to avoid status offense system involvement that may only exacerbate the problems the child and family are experiencing. 

• Use standardized screening tools or questionnaires that have proven reliability and validity to identify disabilities early.

• Require staff training generally on the link between disabilities and justice system involvement and identifying disabilities early, as well as the use of these screening and assessment tools.

• Establish mandatory procedures to review the adequacy and scope of accommodations offered before any child is referred to the status offense court system.

• Educate, engage and support families and youth in plans for services, supports and interventions.

• Develop a holistic approach to addressing the child’s disability both during and outside of school hours through increased involvement with mentors, coaches and youth development approaches (see Section 1.3).

When children with disabilities enter the status offense court system, it is critical that court intake officers, judges and the child’s lawyer obtain information relating to the child’s disability and what services and treatments have already been offered. Children’s attorneys and courts should closely assess whether the status offense referral relates to the child’s disability and analyze whether the referring system made reasonable efforts to address the disability and avoid court involvement.  Children’s attorneys may consider requesting that the court hold a child’s case in abeyance pending the delivery of appropriate services or request dismissal if pre-court accommodations were insufficient.⁶

In those limited instances where court involvement is unavoidable, courts must also assure that disabled children are given a meaningful opportunity to understand and participate in status offense proceedings.  For example, the court should have an interpreter for a child who is hearing impaired or appoint a guardian ad litem attorney for a child whose has a diminished capacity to understand or participate in proceedings.  Courts may also consider appointing special advocates for children with learning disabilities who enter the system because of truancy, or with certain mental health conditions to help them navigate the system.  Having a system advocate who understands the child’s disability is critical to ensuring the child understands the proceedings and what is expected of him or her.  It also helps the court and parties better understand the child’s disability and how it may affect his or her ability to meaningfully participate in proceedings and comply with court mandates and his or her treatment plan.