Section 3

Efforts to Limit Court Involvement

Key Principles

Judicial officers should:

• Dismiss or, alternatively, stay proceedings when community-based services or other formal or informal systems approaches would circumvent the need for continued court jurisdiction (Section 3.1)
• Assess early whether the Indian Child Welfare Act (ICWA) applies (Section 3.2)
• Ensure youth charged with status offenses have independent, qualified and effective representation throughout status offense proceedings (Section 3.3)
• Not allow children in status offense cases to waive counsel or alternatively only allow waiver if: (1) the waiver is on the record, (2) the court has fully inquired into the child’s understanding and capacity and (3) the waiver occurs in the presence of and in consultation with an attorney (Section 3.4)
• Exercise their statutory and inherent authorities to determine, prior to adjudication, whether youth and families received, in a timely manner, appropriate interventions that could have limited their court involvement (Section 3.5)
• Exercise their statutory and inherent authorities throughout the child and family’s court involvement to ensure that service delivery systems are  providing the appropriate assessments, treatments and services to children and families in status offense cases (Section 3.6)
• Assess alternatives to out-of-home placement or secure confinement (Section 3.7)
• Not securely detain or confine youth at any point in the status offense process (Section 3.8)

Lawyers for alleged and adjudicated status offenders should:

• Advocate for voluntary and community-based assistance to limit and/or avoid continued court involvement and secure confinement (Section 3.9)
• Advocate for child clients to be treated fairly throughout the court process and for their due process rights to be protected (Section 3.10)
• Ensure that child clients’ rights and entitlements under relevant federal and state laws are protected (Section 3.11)

Judicial officers and entities providing case management services should:

• Effectively manage and close court and agency cases in a timely manner (Section 3.12)

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Dismiss or Stay Proceedings

Section 3.1

Judicial Officers Should Dismiss or, Alternatively, Stay Proceedings When Community-based Services or Other Formal or Informal Systems Approaches Would Circumvent the Need for Continued Court Jurisdiction

As was discussed in Section 2.1, research shows that formal court system processing, in and of itself, can have a negative impact on youth, increasing the likelihood of future justice system involvement. Diversion programs have a more positive effect for low-level delinquency offenders and youth charged with status offenses than formal court involvement and are more cost-effective.  In addition, the best outcomes for public safety occur when the least restrictive interventions are offered.¹  For these reasons, at the beginning of a status offense case the judge should critically assess whether court involvement will help the child and family resolve the issues that bring them before the court.  To do so, the judge must ensure first responders, pre-court service providers and petitioning parties have made reasonable efforts to provide services and supports to children and families before petitioning a case.  This may include educating petitioners from the bench and through guides or brochures about what the court process is and what it can and cannot offer the child and family.  This is particularly important in jurisdictions where parents can file status offense petitions directly, but may have little or no knowledge about the negative consequences for the child and family if court involvement is pursued. 

When making a “reasonable efforts” determination, the judge should decide whether it is appropriate to continue jurisdiction, dismiss the case or stay proceedings pending the implementation of community-based assistance that may help the child and family resolve their problems outside of court involvement.  The judge should not accept jurisdiction over an alleged status offender when the cause of the child’s alleged behavior is rooted in abuse, neglect, victimization or disability.  He or she should also not accept jurisdiction when pre-court diversion efforts were insufficient or inappropriate to the family’s needs, when state statutory criteria for assuming jurisdiction are not met or when state or federal entitlements preclude status offense jurisdiction.  At minimum, judges should ask:

• What efforts were made prior to a court petition being filed to determine the cause of the alleged status behavior?  This may include questioning the relevant parties about the extent to which service providers interviewed the family and child to understand the reason behind the referral.  It may also include questions about the extent to which the child was screened or assessed, depending on the facts that brought the case to the court, as well as a determination of whether some systemic failure, as opposed to the child’s behavior, brought the case before the court.
• What assistance was offered to the child and family to avoid formal court processing?  This may include questions about whether the child and/or family were offered services, whether a treatment or service plan was developed and how often service providers met with the child or family to assess progress and overcome barriers.  It may also include a determination of whether the services offered met the child and family’s needs and whether assistance not offered or available may have been more suitable. 
• Were statutory pre-requisites met to assume jurisdiction over the case?  This may include a review of the facts in the petition and any other available documents to assess whether the behaviors alleged in fact meet the statutory definition of the status offense charged.  It may also include an inquiry into whether statutory pre-requisites to court involvement were followed, such as whether education or justice system responders engaged in statutorily required processes before petitioning cases to court.
• Was the child entitled to certain protections under state or federal law that would circumvent the need for formal court processing?  For example, the child may be eligible for certain services, assistance and protections under Medicaid, the Indian Child Welfare Act, federal right to education laws or the state constitution in lieu of court involvement.  See Section III, Standards 2 and 11 for more information.

Determining whether to dismiss or stay proceedings will require a case-by-case assessment of the facts that brought the case to the court, the level of effort made by pre-court service providers to engage the family in services, and the extent of the child’s and family’s needs and willingness to engage in voluntary services. 

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¹ The Truth about Consequences—Studies Point towards Sparing Use of Formal Juvenile Justice System Processing and Incarceration. (January 2012) Washington, DC: National Juvenile Justice Network (citing  Petrosino, A., Turpin-Petrosino, C., and Sarah Guckenburg, “Formal System Processing of Juveniles: Effects on Delinquency.” Campbell Systematic Reviews, 2010:1, pp. 32-38 (January 29, 2010)); see also Uberto Gatti et al. (2009) “Iatrogenic Effects of Juvenile Justice,” 50 Child Psychology and Psychiatry 991, 994.

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Indian Child Welfare Act (ICWA)

Section 3.2

Judicial Officers Should Assess Early whether the Indian Child Welfare Act (ICWA) Applies

The Indian Child Welfare Act (ICWA) is a federal law that established minimum standards relating to the treatment and placement of Indian children.  Congress passed ICWA after finding “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”¹  ICWA protects Indian children’s interests by, among other things, ensuring that when an out of home placement is deemed necessary, the setting chosen reflects Indian values and culture.²

Although ICWA does not cover most juvenile delinquency proceedings, ICWA does apply to status offense cases.³  There are several critical junctures during a status offense case when courts should consider ICWA and its provisions, such as at the beginning of the case, when the child is placed out of home and when the child and family are offered services.  If an Indian child is petitioned to court as an alleged status offender, the court should notify the tribe of the proceedings.  This will allow the tribe to help identify culturally appropriate services and assistance for the child and family.  If the child is detained, ICWA’s placement preference standards must apply, unless the placement qualifies as an “emergency removal,” in which case the placement must end as soon as the emergency subsides.⁴

Many of ICWA’s most relevant provisions for status offense cases relate to when a youth is placed out of his or her home.  ICWA gives tribes exclusive jurisdiction over custody proceedings involving Indian children living within their reservation or who are wards of the tribal court.  For all other covered proceedings, the state should transfer jurisdiction to the tribe at the request of a parent, the tribe or the child’s custodian absent good cause or objection by a parent or child of a certain age.⁵  ICWA requires that any Indian child placed in foster care must be placed in “the least restrictive setting which most approximates a family and in which his special needs, if any, may be met.”⁶  The child should be placed reasonably close to his home and the law enumerates a series of placement preferences that must be followed unless the child’s tribe establishes a different order of preference.  Prior to a foster care placement, the placing agency must prove that efforts were made to provide “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” and that those efforts were unsuccessful.⁷   If, however, an Indian child is held in contempt of court for a probation violation, ICWA does not apply if the contempt order results in an out-of-home placement, as ICWA does not consider contempt to be part of the original status offense case.⁸  Still, courts should refrain from placing Indian youth in secure confinement for a status offense.  For more information on the damaging effects of detention and the need to eliminate the valid court order exception, see Section 3.8 and Section 4.10 respectively.

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¹ 25 U.S.C. Section 1901.

² 25 U.S.C. Section 1904; see also The Indian Child Welfare Act and Advocacy for Status Offenders. (2010). Washington, D.C.: American Bar Association Center on Children and the Law. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/ICWA_factsheet.authcheckdam.pdf.

³ Bureau of Indian Affairs. (1979). Guidelines for State Courts; Indian Child Custody Proceedings. Department of Interior, Guideline B-3. Available at: http://www.nicwa.org/administrative_regulations/icwa/ICWA_guidelines.pdf.

⁴ Indian Child Welfare Act of 1978: A Court Resource Guide. (July 2012). ICWA Special Committee, Michigan Court Administrative Office. Available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Manuals/cws/ICWACResourceGuide.pdf.

⁵ 25 U.S.C.A. § 1911.

⁶ 25 U.S.C. Section 1915.

⁷ 25 U.S.C. §§ 1912 –1915; 44 Fed. Reg. 67584. 

⁸ Indian Child Welfare Act of 1978: A Court Resource Guide. (July 2012). ICWA Special Committee, Michigan Court Administrative Office. Available at http://courts.mi.gov/Administration/SCAO/Resources/Documents/Publications/Manuals/cws/ICWACResourceGuide.pdf.

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Qualified Representation

Session 3.3

Judicial Officers Should Ensure Youth Charged with Status Offenses have Independent, Qualified and Effective Representation Throughout Status Offense Proceedings

Judges must ensure that all children who appear before them because of alleged status offenses receive independent, qualified and effective legal representation from the initial hearing to case closure.  Status offense cases can have significant consequences for youth, and an attorney can help ensure they are not unnecessarily removed from their homes or held in secure detention, deprived of entitlements and services or pushed deeper into the juvenile justice system.  A qualified attorney will also help the child present evidence in his or her defense and challenge the petitioner’s case.  If the child is adjudicated as a status offender, he or she needs counsel to help assure the disposition plan is fair and appropriate to the child’s needs.¹  Moreover, counsel will help the child understand the court process, what is expected of him or her and what the consequences are for failing to comply with court mandates. 

The child’s legal representative must be independent and qualified to ensure the child receives effective assistance of counsel.  To be independent, the attorney must only represent the child’s expressed interests.  In some status offense cases, especially incorrigibility or runaway cases, the parents’ expressed interests may conflict with the child’s.  In addition, abuse, neglect or high family conflict may be significant contributing factors to the status offense charges, requiring that the child have his or her own legal representative separate from his or her parents. 

Representing children in status offense cases also requires specialized training.  As discussed in Section 2.3, professionals working with and on behalf of alleged status offenders should receive ongoing training on a variety of issues to understand the causes of status behaviors and the best ways to resolve status offense cases.  To ensure legal advocates understand how to effectively represent their client’s interests, they should receive training on topics such as:

• What research shows about the effect court involvement and detention may have on youth (see commentary for Section 2.1 and Section 3.8).
• What research shows regarding the factors associated with each type of status offense, including discussions of risk factors in the home, community and school.
• How systemic failures may lead to status offense system involvement.
• Adolescent development (see commentary for Section 1.2).
• Trauma-informed advocacy, including understanding the effects exposure to violence and victimization can have on youth (see commentary for Section 1.4).
• Being culturally competent and sensitive to gender, race and LGBTQ issues (see commentary for Section 1.8, Section 1.9, and Section 1.10).
• Accommodating and understanding issues relating to youth with disabilities (see commentary for Section 1.11).
• Available screening tools, assessments and services that are appropriate for youth charged with status offenses, and how to protect youth from self-incrimination when receiving screening, assessment and services.
• State and federal entitlements and rights that may preclude the need for court involvement.

Effective assistance of counsel, in addition to training, also requires that the child have legal representation at all stages of the status offense process and preferably before the initial hearing so counsel has time to meet and prepare with his or her client.  The lawyer must also have the resources to conduct a proper investigation and prepare for evidentiary and disposition hearings.  Effective representation also requires that compensation for appointed counsel is fair and that caseloads are not excessively high.²

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¹ A Call For Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings (2002).  Washington, DC: ABA Juvenile Justice Center, Youth Law Center and the Juvenile Law Center.  Available at: http://www.njdc.info/pdf/cfjfull.pdf.

² See Juvenile Delinquency Guidelines: Improving Court Practice in Juvenile Delinquency Cases (2005). Reno, NV: National Council of Juvenile and Family Court Judges, Chapter 3, pg. 78-79. 

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Waiver of Counsel

Section 3.4

Judicial Officers Should Not Allow Children in Status Offense Cases to Waive Counsel or Alternatively Only Allow Waiver If: (1) The Waiver is on the Record, (2) the Court has Fully Inquired into the Child’s Understanding and Capacity and (3) the Waiver Occurs in the Presence of and in Consultation with an Attorney

• Lawyers help ensure that children’s rights are protected and that they are treated fairly, which includes giving them an opportunity to be heard through their counsel. 
• Lawyers work to limit children’s exposure to the formal court system and avoid detention, making sure children are not adjudicated for offenses they did not commit.
• Lawyers help ensure children are in safe placements, and that services and treatments provided meet children’s specific needs. 

Despite the many benefits associated with having counsel during status offense proceedings, many youth waive this right when it is first offered, whether at the beginning of the case or later.  They often do so without having consulted an attorney, without colloquy with the court and with no assessment of their capacity to understand the rights they are waiving.  For example, the Ohio Public Defender reports that two-thirds of the children who were the subject of status offense or delinquency complaints resolved in 2004 faced those proceedings without a lawyer.²  In addition, a report from the Ohio Department of Youth Services found that 20% of children placed at correction facilities were not represented by a lawyer during their delinquency cases.³

Although the U.S. Supreme Court case, In re Gault,⁴ mandated a right to counsel for children in delinquency proceeding, it did not necessarily do so for status offense cases.  So, while many states appoint counsel for youth for all or most stages of a status offense case, others do not do so until the child faces the threat of incarceration.⁵  Likewise, although many best practice standards call for states to pass laws that make counsel an un-waivable right, many states allow children to too easily waive the right in both delinquency and status offense cases.⁶  

Research on adolescent development, however, has found that a youth’s capacity to understand consequences changes and matures as he or she ages.  Youth are less likely to make informed decisions or consider future consequences for their present actions. (See Section 1.2 for more information on adolescent development).  Hence a child’s waiver of counsel should not be accepted by the court or only done so if it is done knowingly and with the fair and unbiased assistance of an attorney. 

The National Juvenile Defender Center (NJDC) proposes model waiver legislation that includes numerous safeguards for children to ensure that any waiver of counsel is made knowingly and intelligently.  NJDC advocates that states enact laws that do not allow children to waive counsel unless the waiver is executed (1) in the presence of and after consultation with a lawyer (2) on the record in open court and in writing (3) in a language regularly spoken by the child and (4) after the court fully inquires into the youth’s comprehension and capacity.⁷  The model legislation also advocates that standby counsel be appointed if the child waives counsel and that the court renew the offer of counsel at later court proceedings.⁸

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¹ Interbranch Commission on Juvenile Justice. (2010) Testimony of Robert Schwartz, Executive Director, Juvenile Law Center. Pennsylvania Models for Change.

² See http://www.opd.ohio.gov/Juvenile/Jv_Right_to_Counsel.htm.

³ Ohio Office of the Public Defender. Protecting a Juvenile’s Right to be
Represented by Counsel (Website). Available at: http://www.opd.ohio.gov/Juvenile/Jv_Right_to_Counsel.htm.

⁴ 387 U.S. 1 (1967).

⁵ Fact Sheet: The Right to Counsel in Status Offense Cases (2010). Washington, D.C.: American Bar Association Center on Children and the Law. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/right_to_counsel_factsheet.authcheckdam.pdf.

⁶ See IJA-ABA Juvenile Justice Standards. Standards Relating to Counsel for Private Parties, Standard 2.3, which says that children should have counsel in delinquency and in need of supervision cases.

⁷ National Juvenile Defender Center and Center for Policy Alternatives (2006). Child Waiver of Counsel Prohibition Act. Available at: http://www.njdc.info/pdf/waiver_model_legislation.pdf.

⁸ National Juvenile Defender Center and Center for Policy Alternatives (2006). Child Waiver of Counsel Prohibition Act. Available at: http://www.njdc.info/pdf/waiver_model_legislation.pdf. 

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Pre-Court Diversion

Section 3.5

Judicial Officers Should Exercise their Statutory and Inherent Authorities to Determine, Prior to Adjudication, Whether Youth and Families Received, in a Timely Manner, Appropriate Interventions that Could Have Limited their Court Involvement

Although all efforts should be made to avoid court involvement for status offense behaviors, in some cases youth alleged to have committed a status offense will end up in court. Prior to adjudication, judicial officers should take deliberate steps to determine whether pre-court diversion efforts were made and, if so, why they failed to produce the desired outcome.  If the court determines that pre-court diversion efforts where inadequate, judicial officers should, whenever possible, dismiss the case or stay proceedings until such interventions are pursued. (See commentary for Section 3.1 for more information on questions judicial officers should ask about the adequacy of pre-court efforts). 

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Court Oversight of Service Delivery Systems

Section 3.6

Judicial Officers Should Exercise their Statutory and Inherent Authorities throughout the Child and Family’s Court Involvement to Ensure that Service Delivery Systems are Providing the Appropriate Assessments, Treatments and Services to Children and Families in Status Offense Cases

Once a status offense case enters the disposition phase, the probability of the youth and his/her family being drawn deeper into the juvenile justice system increases and accelerates. To avoid this, it is imperative and beneficial that courts take on an oversight role.  Judicial officers are uniquely positioned to help ensure that children and families receive timely and appropriate services and assistance that can meet the family’s needs and limit the family’s court involvement.  As overseer, the court’ role is not to evaluate the quality of any given service, but to ensure that the service-delivery system is functioning in the youth and family’s best interest.

There are many ways courts can provide oversight and help ensure that service providers are adequately responding to families’ needs in status offense cases.  Keeping in mind that states may have different ethical, confidentiality and other jurisdictional policy or law requirements or limitations, courts can consider:¹

• Contacting providers in writing or by phone to request a report or ongoing reports on what the providers’ objectives are and how they plan to achieve them, focusing also on the timeliness and appropriateness of services. 
• Subpoenaing entities responsible for providing the child or family services, assessments, treatments or other services either by requiring their presence in court or requiring that they submit documentation to the court that shows their efforts to support the child or family.
• Joining entities responsible for providing the child or family services, assessments, treatments or other services as parties to the status offense case.  In doing so, the court can fully oversee when and how assistance is offered to the child and family and the service providers will have a fuller understanding of what is happening in the court process and how it affects their work.  This may be particularly useful for the court, child and family if the entity responsible for providing services has failed to meet their legal responsibility to provide assistance.

In addition, whenever services are offered through or supervised by the court, judicial officers should ensure that they:

• Can be started immediately and without long waitlists or time-consuming prerequisites.
• Are community-based and offered in locations and at times that make it easy for youth (and their families, when appropriate) to attend.
• Are offered in the least restrictive setting possible (e.g., outpatient, in a comfortable, non-punitive setting), and incarceration is avoided.
• Are offered by qualified providers with the necessary training and experience, who frequently work with at risk or court-involved youth.
• Are evidence-based, empirically-supported, or otherwise shown to benefit youth of similar age, gender, and ethnicity and in similar circumstances to the child in question, and are provided by professionals with appropriate training, education and/or experience.

While courts should seek to ensure the child and family receive necessary treatment and services, the court should never assume or maintain jurisdiction over a child and family solely to provide, oversee or ensure that treatment or services are offered.  The court should also be mindful of the purpose for requesting the service, treatment or assessment and ensure that information gained through the providers’ reports is never used to harm the child or used against him or her.

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¹ Many state laws allow courts to oversee aspects of the service delivery system used for children in the child welfare and juvenile justice system.  For example, California law allows “the court, at any time after a petition has been filed, to join in a juvenile court proceeding any governmental agency, private service provider, or individual…that the court determines has failed to meet a legal obligation to provide services to a child who is the subject of a dependency proceeding…[or] delinquency proceeding.” CA SB 1048 (2012).  In Idaho, a judge of any court can order the Department of Health to submit appropriate mental health assessments and treatment plans for the court’s approval at any stage of court proceedings.  ID. Stat.§ 20-511A.

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Alternatives to Confinement

Section 3.7

Judicial Officers Should Assess Alternatives to Out-of-home Placement or Secure Confinement

• If the child is Indian, and if so if the  Indian Child Welfare Act’s guidance regarding placements has been complied with (e.g., placement in the least restrictive setting possible and in Indian homes).  See Section 3.2 for more information.
• If the agency or service provider understands and is working to overcome the cause of the status offense referral.
• Whether systemic issues or other failures to provide appropriate services have kept the case in court unnecessarily.
• If all appropriate other systems that should be involved have been, e.g. child welfare, mental health, education.
• If all community-based alternatives have been explored and attempted if appropriate and whether the child has received individualized treatment/service plans before contemplating out-of-home placement.

If all nonresidential options have been exhausted and the court is considering out-of-home placement the judge should assess whether respite care or simply approving certain locations (e.g., the home of a relative or friend agreed to by the youth and his or her parents) as respite care options would provide the family and child resolution to the issues they face.  Allowing the youth and family to take needed breaks without designating the youth as running away or violating court orders may supplant the need for a longer out-of-home placement arrangement.¹ In rare cases, youth may require temporary, specialized residential treatment programs to address complex trauma, severe mental health needs and substance use disorders.  When they are needed, residential treatment programs should be short-term placements that provide gender-specific, trauma-informed services and that include the youth’s family and other caregivers into their treatment, recovery and prompt re-integration into an appropriate family-like setting. 

A young person should never be placed in a residential treatment facility as a default when more appropriate placement options are not readily available.  Prior to any approval of a residential placement, there should be a multi-disciplinary team meeting to consult with the young person, their family and other caregivers, as appropriate, their case workers, and any other relevant mental health or other treatment specialists.  Once approved, the continuing need for residential treatment should be re-evaluated frequently and appropriate supports provided to ensure the youth’s successful re-integration into family and community settings.

When a longer term out-of home placement is required, youth charged with noncriminal status offenses should be able to stay in home-like settings that ensure safety and provide appropriate services and supports to address their unique needs.  Child welfare systems use many types of alternatives to congregate and group care settings that may be appropriate for youth charged with status offenses including kinship care (placement with relatives), family foster care provided by non-relatives, treatment foster care (by families with special training on youth’s medical or mental health needs) or shared family care (a placement where both parent and child live with a supportive family who can provide mentoring and support).²

All measures must be taken by the court to avoid out-of home placement and particularly secure confinement in status offense cases.  Even when all of the above options have been exhausted, there are still many proven alternatives to confinement for youth charged with low level or status offenses.  These include reporting centers, which are nonresidential treatment facilities where youth report at set frequencies, either at night or during the day and “intensive supervision programs,” which also require regular in person check ins and offer youth needed services, but have stricter monitoring.³  Foster care placements, ideally with foster families that have specifically been recruited and trained to work with youth offenders, can also provide an alternative to secure confinement. 

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¹ Smith, T.J. “Post-Adjudication 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, 86. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf.  Also see Mogulescu, S. et al. (2008) Making Court the Last Resort: A New Focus for Supporting Families in Crisis. New York, New York: Vera Institute of Justice (discussing the use of respite care in several jurisdictions).

² See Child Welfare Information Gateway, “Types of Out-of-Home Care.” Available at: https://www.childwelfare.gov/outofhome/ for more information on each of these placement options.

³ “Community-Based Alternatives to Secure Detention and Incarceration” from OJJDP Deinstitutionalization of Status Offenders Best Practices Database. Available at: http://www2.dsgonline.com/dso/dso_types_of_dso_strategies_direct_services_community_based_alternatives_to_secure_detention
_and_incarceration.aspx.

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Secure Confinement

Section 3.8

Judicial Officers Should Not Securely Detain or Confine Youth at Any Point in the Status Offense Process

Moreover, research on adolescent development shows that young people’s brains continue to mature well into their twenties.³  As a result, adolescents are more likely than adults to be influenced by peers, engage in risky and impulsive behaviors, experience mood swings, or have reactions that are stronger or weaker than situations warrant⁴ (See Section 1.2).  Courts and other stakeholders in the status offense system must acknowledge these developmental issues and recognize that adolescents sometimes make poor decisions.  Using detention or secure confinement as a way to curb these behaviors not only fails to recognize what research shows about adolescent development, but carries more risks than benefits for the child, his or her family and community.

There are many things judges can do to better assist children and families in need by utilizing alternative services and approaches to detention or secure confinement.  For example, judges can:

• In cases where the child has violated an order of the court, critically assess the cause of the child’s court order violation and determine whether community-based services or treatments may best help the child and family; being mindful of the roles trauma and past victimization, adolescent development, mental health disorders or under diagnosed or under treated disabilities can play in childhood behaviors.  (See Section 1.2, Section 1.4, and Section 1. 11 for more information).
• As discussed in Section 3.11 determine whether other laws or entitlements may offer viable alternatives to detention or place restrictions on the use of detention.  For example, the Indian Child Welfare Act applies if an Indian child is placed out of the home and requires that certain pre-requisites be met prior to placement.
• Explain to parties to the case, as well as families, the dangers of incarceration and the better successes that are born from community-based service alternatives.  Doing so, particularly with families unfamiliar with the justice system, can empower them to help identify the best ways to support the child and avoid deeper justice system involvement.
• Seek out respite or kinship care alternatives to detention, particularly when there is high conflict in the home that raises safety concerns for the child or if the child is running away repeatedly.⁵
• Utilize available community-based service alternatives, such as those that take a “system of care” or wraparound approach that would individualize service plans to families’ needs, promote family participation and coordinate services and planning.
• Seek to adopt and replicate the principles and core strategies used through the Juvenile Detention Alternatives Initiative (JDAI), which promotes collaboration between justice system stakeholders to reduce the use of unnecessary detentions by, among other things, using accurate data, supporting new case processing forms, enhancing community-based programs and implementing policies and programs that reduce disproportionate minority contact.⁶
• Create stakeholder work groups or advisory boards to assess how and when detention is used in status offense cases and develop strategies to identify and implement alternatives to detention and secure confinement.⁷

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¹ Holman, B., et al., (2007) The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities. Justice Policy Institute, Annie E. Casey Foundation.

² Office of Juvenile Justice and Delinquency Prevention. “Community-Based Alternatives to Secure Detention and Incarceration” in Deinstitutionalization of Status Offenders Best Practices Database. Available at:  http://www2.dsgonline.com/dso/dso_types_of_dso_strategies_direct_services_community_based_alternatives_to_secure_
detention_and_incarceration.aspx.

³ Coalition for Juvenile Justice. (2006) “Applying Research to Practice Brief: What Are the Implications of Adolescent Brain Development for Juvenile Justice?”

⁴ Id.

⁵ See, e.g., Mogulescu, S. et al. (2008) Making Court the Last Resort: A New Focus for Supporting Families in Crisis. New York, New York: Vera Institute of Justice (discussing the use of respite care in several jurisdictions).

⁶ See JDAI Help Desk at: http://www.jdaihelpdesk.org/default.aspx.

⁷ Coalition for Juvenile Justice. (2012). Positive Power: Exercising Judicial Leadership to Prevent Court Involvement and Incarceration of Non-Delinquent Youth. Washington, DC.

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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

• 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

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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.

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Due Process Rights

Section 3.10

Lawyers for Alleged and Adjudicated Status Offenders Should Advocate for Child Clients to be Treated Fairly throughout the Court Process and for their Due Process Rights to be Protected

To effectively represent a child client in a status offense case, the lawyer must not only advocate for what the child wants, but ensure the child is treated fairly throughout the court process and that his or her rights are protected.  There are many ways the lawyer can ensure fair treatment, such as:

• Ensuring the child is present at every court hearing.  If the child does not want to participate in court proceedings, counseling the child on the importance of his or her participation and, if appropriate, discussing available alternative means to participation (such as videoconferencing or phone).
• Making sure that a child who is not fluent in English is provided an interpreter during all court proceedings and when the lawyer meets with him or her (if the lawyer does not speak the child’s native language).
• Ensuring that information the court and attorneys convey, whether written or oral, is understood by the child, if he or she has low or no literacy skills or a disability that makes reading and/or comprehension difficult.  Explaining key documents, reports and court orders may be required. 
• Advocating that any services that the court orders are appropriate for the child’s needs and that he or she can realistically comply with them (which may include ensuring that the service is offered at a time and location that is convenient for the child).
• Ensuring that screening, assessment and services are provided in such a way that privacy is protected and results are used to help youth, rather than incriminate them or cause them to become more deeply involved in the juvenile justice system.
• Taking into consideration gender differences, a child’s disability and culture when agreeing to court-ordered assessments, treatments or services.  (See Section 1.8, Section 1.9, Section 1.10 and Section 1.11 for more information)
• Taking time to meet with the child regularly to get updates on case progress, counsel the child on how to proceed and get instructions on what the child wants the lawyer to advocate for in and out of court.

The lawyer must also ensure that the child’s due process rights are protected throughout the court proceedings.  This includes ensuring that the child is:¹

• Given notice of the charges against him or her and that he or she understands those charges.
• Properly notified of court hearings and meetings.
• Able to invoke his or her Fifth Amendment right against self-incrimination.
• Given the opportunity to confront and cross examine witnesses.

To the extent the court threatens to incarcerate the child for violating a valid order of the court, additional due process protections must be afforded.  The child has a right to:²

• Receive adequate and fair warning of the consequences of the violation at the time it was issued and the warning must be provided to the child, his or her lawyer and his or her legal guardian.
• Have the charges against him or her in writing served in a reasonable amount of time before the hearing.
• A hearing before a court.
• An explanation of the nature and consequences of the proceeding.
• Confront witnesses and present witnesses.
• Have a transcript or record of the proceedings.
• Appeal to an appropriate court.
• Have the judge determine whether all dispositions other than secure confinement have been exhausted or are clearly inappropriate.

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¹ See, e.g., North Carolina Office of Indigent Defense Services. (2008). Rights and Protections Afforded to Juveniles. Juvenile Defender Manual, Chapter 2.

² 28 CFR § 31.303(f)(2) (listing numerous conditions that must be met before a child can be found to have violated a valid order of the court). 

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Federal and State Laws and Entitlements

Section 3.11

Lawyers for Alleged and Adjudicated Status Offenders Should Ensure that Child Clients’ Rights and Entitlements under Relevant Federal and State Laws are Protected

Various federal and state laws give youth rights that can help them avoid justice system involvement or secure confinement.  In some cases attorneys can argue for a case to be dismissed or stayed, if social service, juvenile justice or education systems fail to comply with certain protections or entitlements, or a case may be transferred to another system if child protection, domestic relations or other laws are implicated.  Attorneys representing alleged status offenders must be familiar with these laws to ensure youth’s rights are protected and that they achieve the best possible outcomes for their clients.

Examples of laws and entitlements that may be applicable in status offense cases, include:

• The Juvenile Justice and Delinquency Prevention Act sets out certain core requirements states must comply with to receive federal grants to address juvenile delinquency, including prohibiting secure confinement for status offenders (with certain exceptions, such as violation of a valid court order, for a limited time early in the case or for out-of-state runaway youth).¹
• Medicaid and its Early and Periodic Screening, Diagnosis and Treatment provisions offer various physical and mental health services, including case-management and preventative and rehabilitative care, to eligible youth.²  The Health Insurance Portability and Accountability Act (HIPAA), federal drug and alcohol regulations and state confidentiality laws also provide some privacy protections which may be applicable to status offenders.³
• Various education and special education laws are relevant to alleged status offenders.  The Individuals with Disabilities Education Act entitles youth with qualifying disabilities to a “Free and Appropriate Education,” which generally includes an “Individualized Education Program,” which specifies the instruction and other services the child will receive, tailored to his or her needs.⁴  The Americans with Disabilities Act and Section 504 of the Rehabilitation Act also protect youth from discrimination on the basis of their disabilities.⁵  The Bilingual Education Act can provide some services to youth who are non-native English speakers, and the Mckinney-Vento Homeless Assistance Act provides protections to homeless youth such as the right to stay in their local or most recent school.⁶
• The Adoption and Safe Families Act and other child welfare laws provide many service entitlements and other protections for youth who are in a qualified placement through their local child welfare agency.  Under ASFA the child welfare agency must make reasonable efforts to avoid removing children from their home and, after removal, provide a case plan, both of which involve providing numerous resources and services to meet the child’s needs and reunify the family.⁷
• The Indian Child Welfare Act applies to status offense cases and includes provisions for the treatment and placement of Indian children, requiring, for example, that out of home placements reflect Indian values and culture, are reasonably near home, and represent “the least restrictive setting which most approximates a family and in which his special needs, if any, may be met.”⁸  ICWA also requires that services be provided to try to avoid breaking up Indian families.  See Section 3.2.
• Emancipation laws available in some jurisdictions, which allow youth to petition under state law to be considered adults in the eyes of the law, or family court proceedings which can give custody of a young person to a non-custodial parent or other adult, may help avoid deeper juvenile court involvement for some youth, particularly where conflict with, or abuse/neglect by, a parent underlies the status offense case.⁹
• Relevant federal immigration laws and regulations, such as those regarding Special Immigrant Juvenile Status¹⁰ may also provide immigrant youth some protections.
• The federal constitution and state laws grant youth certain due process rights and attorneys should be particularly aware of youth’s constitutional and other rights to avoid self-incrimination, both in the courtroom and while receiving assessments and services. See Section 3.10.¹¹
• State constitutional rights and state statutes, such as those relating to education or defining when youth are entitled to counsel in status offense cases, may provide additional rights and entitlements to youth in status offense cases. 

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¹ Bilchik, S. & Erika Pinheiro  “What the JJDPA Means for Lawyers Representing Juvenile Status Offenders” in Representing Juvenile Status Offenders. (citing 42 U.S.C. § 5633(a)(11) (2006)) Washington, D.C.: American Bar Association Center on Children and the Law, 4-11. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf; See also, 42 U.S.C. 5633(a), which includes an exemption to the deinstitutionalization of status offenders requirement, permitting the detention of young people held in accordance with the Interstate Compact on Juveniles.

² Stone M., supra note 136 at 53-54 (citing 42 U.S.C. § 1396a-d).

³ Rosado, L.M. & Riya Shah  (2007). Protecting Youth from Self-Incrimination when Undergoing Screening, Assessment and Treatment within the Juvenile Justice System. Available at: http://www.jlc.org/sites/default/files/publication_pdfs/protectingyouth.pdf.

⁴ Tulman, J. “Using Special Education Advocacy to Avoid or Resolve Status Offense Charges” (citing 20 U.S.C.  §§1400-1490, 34 C.F.R. pt 300) in Representing Juvenile Status Offenders. Washington, D.C.: American Bar Association Center on Children and the Law, 92-96. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf

⁵ Id. At 111-112.

⁶ Stone, M. (2010). “Accessing Intervention Services for Status Offenders and Avoiding Deeper Involvement in the Court System,” supra note 136 at 46.

⁷ Stone, M. (2010). “Accessing Intervention Services for Status Offenders and Avoiding Deeper Involvement in the Court System,” supra note 136 at 48 (citing 42 U.S.C. §§ 620-679).

⁸ 25 U.S.C. §1915, also see 25 U.S.C. §§ 1901 –1915 and The Indian Child Welfare Act and Advocacy for Status Offenders. (2010). Washington, D.C.: American Bar Association Center on Children and the Law. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/ICWA_factsheet.authcheckdam.pdf.

⁹ Heyd J. and  Casey Trupin  “How Status Offenses Intersect with Other Civil and Criminal Proceedings” in Representing Juvenile Status Offenders. Washington, D.C.: American Bar Association Center on Children and the Law, 132-136. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf.

¹⁰ U.S. Citizenship and Immigration Service.  “Special Immigrant Juveniles (SIJ) Status.” Available at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3d8008d1c67e0310VgnVCM100000082ca60aRCRD&vgnextchannel=3d8008d1c67e0310VgnVCM100000082ca60aRCRD.

¹¹ See, e.g., Rosado, L.M. &  Riya Shah  (2007). Protecting Youth from Self-Incrimination When Undergoing Screening, Assessment and Treatment within the Juvenile Justice System, available at http://www.jlc.org/sites/default/files/publication_pdfs/protectingyouth.pdf.

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Managing Cases in a Timely Manner

Section 3.12

Judicial Officers and Entities Providing Case Management Services Should Effectively Manage And Close Court and Agency Cases in a Timely Manner

Judges and agencies providing direct services to children and families in status offense cases must strike a balance between over-evaluating case progress and letting cases languish without any oversight.  Over-evaluating case progress can take a toll on the child and family, adding an extra layer of burden and scrutiny.  Too frequent court reviews or agency meetings may disengage families who are often struggling with a myriad of other issues at home, school and work; making it difficult for them to participate in too many meetings and court appearances.  This added pressure may ultimately work contrary to case goals, making it more difficult for the family to help identify and implement solutions that will successfully resolve the case.  Importantly, overly frequent reviews may not allow corrective measures to take hold or allow the child to develop new connections to school or home that require time to stabilize and develop.

Conversely, courts and service agencies must also be cognizant of not letting cases languish with little or no oversight.  Failing to assess how the child and family is being served and what progress they, as well as the service providers, are making increases the likelihood that the cause behind the court referral will not be adequately addressed.  The child then may be more at risk for remaining in the status offense system unnecessarily or entering another system, such as juvenile justice, mental health or child welfare.  

Therefore, courts and direct service providers must manage and close each status offense case based on the individual needs of the child and family.  Conducting early screening and assessments can help the agency and court understand the child and family’s needs and develop a case management plan, which includes timeframes and the provision of appropriate services and interventions.  In implementing an effective case management plan, professionals should be realistic about the family’s capacity and needs and flexible when those needs change or new information comes to light.  How frequently case progress should be assessed and ultimately when a case should close should be determined based on what the child (and possibly family) wants, and what the child and family need to successfully transition out of the status offense system.

To better prepare children and families for successful case closure, courts and service providers should link families to community-based, educational or other transitional support services, such as special education services through the child’s school, mental health services through community mental health programs or employment/career support services.  Service providers should also meet with the family several times leading up to case closure to develop a transitional case plan that is realistic to complete and provides the family and child needed support as they leave the status offense system.