Community-based Assistance

Section 3.9

Lawyers for Alleged and Adjudicated Status OffendersShould Advocate for Voluntary and Community-based Assistance to Limit and/or Avoid Continued Court Involvement and Secure Confinement

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A key part of the attorney’s role is to limit court involvement and avoid secure confinement.  This includes educating parents and children about what the process will be and how to advocate for themselves.  Parents and youth can help the attorney make the case to the court that court intervention and/or secure confinement is unnecessary because the child’s needs can be met with resources available in the community and family support.  Also, some parents may mistakenly believe that court involvement will benefit their child; by addressing this misconception attorneys can encourage parents to better assist in efforts to avoid deeper system involvement.  Steps attorneys can take to promote voluntary service alternatives include:1

  • Moving to dismiss the case because of a disability or unmet mental health need, or if protections or entitlements under federal law (such as the Individuals with Disabilities Education Act accommodations that might have prevented truancy) were not observed (See Section 3.11).
  • Assessing whether the agency was required by statute to attempt to connect the youth to services before filing a petition and asserting that the court lacks jurisdiction if it failed to do so (See Section 2.7).
  • Asking that the court stay the case or give a continuance pending assessment results and/or service delivery.
  • Participating in mediation, family group conferencing, or other forms of alternative dispute resolution. (See Section 1.6 and Section 1.7).2


Other steps attorneys can take to avoid deeper justice system involvement and secure confinement include:3

  • Challenging an attempt to lock up a youth based on a valid court order violation when the order violated was vague, unclear or unreasonable.
  • Requiring the state to prove every element of every statutory section potentially violated, challenging whether the alleged behavior violated bright line rules or truly met the subjective standards of the statute.  For example, if a statute defines truancy as a number of unexcused absences in a school year, charges might be inappropriate if one or more of the absences counted took place in the previous school year, or was actually an excused absence.  Also, subjective terms such as “habitual” or “reasonable” are often used in ungovernability and other status offense statutes, and can be the basis for a challenge—e.g., if only two examples of unruly behavior were given, an attorney can argue that two occasions do not constitute “habitual” behavior. 
  • Educating the court and parents about the dangerous effects of detention and court involvement (see Section 3.8).


Attorneys can also help their clients avoid deeper justice system involvement by helping them access services in their communities.  Limited resources are often an issue, however; common and significant barriers to accessing diversion services include geographic disparity and long wait lists.4  Professionals should be aware of ways to overcome these barriers, such as by understanding how and when the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) provisions of Medicaid apply.  Federal law requires every state to provide EPSDT services to eligible children, which may include case management, psychiatric, community-based or rehabilitative services.5  Medicaid also requires that programs be available statewide and may be a basis for challenging a lack of services due to geographic location.6


1 Adapted from Stone, M. (2010). “Accessing Intervention Services for Status Offenders and Avoiding Deeper Involvement in the Court System” in Representing Juvenile Status Offenders. Washington, D.C.: American Bar Association Center on Children and the Law, 40-66. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf.

2 See Stone, M, supra note 136 for a discussion of factors to consider when using alternative dispute resolution in status offense cases.

3 Adapted from Smith, T.J., “Preadjudication Strategies for Defending Juveniles in Status Offense Proceedings.” and “Postadjudication Strategies for Defending Juveniles in Status Offense Proceedings.” in Representing Juvenile Status Offenders. Washington, D.C.: American Bar Association Center on Children and the Law, 59-88. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf.

4 Stone, M. (2010). “Accessing Intervention Services for Status Offenders and Avoiding Deeper Involvement in the Court System,” supra note 136.

5 Id.

6 Id.