September 01, 2017

ABA Enacts Standards for Dual-System Youth

Linda Britton

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Youth involved with the child welfare and juvenile justice systems have poor outcomes as they transition to adulthood. They are less likely to complete high school, more likely to become homeless, more likely to enter the criminal justice system, and they lose access to benefits as former foster children that would assist them with education, training and job skills, employment, and housing. Crossover youth also tend to be disproportionately youth of color. 

In August, the ABA House of Delegates passed the ABA Criminal Justice Standards Relating to Dual Jurisdiction Youth. The standards, proposed by the ABA Criminal Justice Section, assist lawyers and courts with youth involved in multiple legal systems. The most common dual-status situations are foster youth who enter the juvenile justice system, but other crossover combinations occur in educational and mental health systems as well.

The overarching goal of the standards is to reduce the number of youth who enter the juvenile justice system and ensure systems coordinate information and care for youth who are multisystem involved. The path to meeting this goal can be summarized as follows:

  • Reconsider practices that result in unnecessary referral of youth to juvenile courts;
  • If referred, maximize diversion from juvenile court;
  • Make certain youth receive services from all systems: coordinate and collaborate with each other while protecting youth privacy;
  • Improve legal representation for multisystem youth and ensure families of youth are engaged and heard; and
  • Ensure that youth discharged from juvenile justice facilities have a re-entry plan well before discharge.

The standards are organized by this framework of principles for courts, agencies, and lawyers who handle dual-status youth.

Juvenile Justice Referrals

Do not refer youth from other systems or agencies to the juvenile justice system for minor delinquent behavior. Scrutinize all arrests and referrals to the juvenile justice system. 

Too often, foster youth are arrested or referred to the juvenile justice system for normal adolescent behavior. Typical teenagers living with their parents would not be arrested for single incidents of disruptive behavior, leaving home without permission, breaking curfew, or skipping school. Youth who are in foster care should not be arrested and locked up in detention for the same conduct. To reduce entry into the juvenile justice system, child welfare agencies and foster placements must differentiate between normal adolescent behavior and conduct warranting intervention. Court systems should develop protocols to screen referrals to keep youth out of the juvenile justice system.

The standards define “minor delinquent behavior” as “conduct that does not rise to the level of significant or repeated harm to others, significant or repeated property loss or damage, or a threat of significant harm to others.” Standard 1.1(t)

The standards advise that minor delinquent behavior should be addressed without law enforcement, and that stakeholders (dependency judges, child welfare agencies and caseworkers, foster families and group homes, and counsel for all parties) create a presumption against arresting youth in the child welfare system for minor delinquent behavior. 

Further, law enforcement, schools, and the juvenile justice system should improve joint protocols so that youth are not unnecessarily pushed into the juvenile justice system. Data should be kept and reviewed by all groups to identify gender, racial or ethnic, and economic disparities in referrals.

More important, school resource officers are not to be used to enforce school discipline; they are present when necessary to protect students. Memorandums of understanding (MOUs) between law enforcement agencies and school districts must reflect the protocols for school resource officers. School misbehavior should be handled by school personnel, and disciplinary practices should limit educational disruption, reject zero tolerance policies and mandatory punishments.

Youth privacy must be protected, especially with educational records. And, all systems must meet the educational needs of multisystem youth.

Youth Diversion

Youth should be diverted from the juvenile justice system to receive necessary services whenever possible. 

Excellent diversion programs are constantly being developed starting at the police station door so a youth need not become more deeply involved in the juvenile justice system. Diversion programs must also exist at other points in the juvenile justice system: through detention staff at the time of detention, through juvenile probation officers before a case is sent to the prosecutor’s office; by the juvenile prosecutor when the case enters court; and by the court itself upon receiving a motion to defer a youth. It’s critical that diversion exist at multiple points of entry to extract those youth who can best benefit from these programs and receive appropriate services. 

Detention must not become a placement for youth, and child welfare agencies must not close their case once a youth is detained, adjudicated, or sent to another correctional facility. Locked facilities should only be used to protect the safety of the community or to prevent flight by a youth.

Coordination & Collaboration

Information must be shared to allow coordinated services but protect youth privacy, and systems must collaborate to provide necessary services to youth. The juvenile court is the lead for dual-status youth.

The standards suggest amending state laws and policies to support coordinating services and removing funding barriers. Juvenile and family courts must establish policies and protocols for referrals of youth, detention issues, and service provision for youth. Concurrent jurisdiction between systems must continue, even when a youth is transferred to adult court, so the youth can continue accessing benefits to which he or she is entitled under each system. Early identification of youth in the child welfare and juvenile justice systems with mental health or substance abuse conditions is critical to allow access to appropriate treatment.

When a youth must enter the juvenile justice system, courts should use dual-status dockets led by the juvenile justice court, and elements of specialty youth courts, e.g., youth drug courts. These elements include hearings at which: 

  • all system stakeholders are present, 
  • parents are present and engaged, and 
  • a team approach is used with close judicial oversight. 

There are also incentives for positive youth behavior and graduated responses for negative behavior. Services are coordinated, goals are aligned, permanency planning continues, and all systems are responsible for a youth’s outcomes. Meaningful re-entry strategies are planned, discussed, and executed.

During adjudication of an alleged juvenile offense and to fully protect youth privacy, statements made by the youth to the “best interest” advocate in the child welfare case should not be used in the juvenile court case absent a knowing, voluntary, and intelligent waiver.

Services & Representation

All services for youth should be in a least-restrictive setting and close to family, whether in or out of custody. Zealous advocacy by legal counsel should be provided through post-disposition for youth.

Disposition requires coordination of services, appointment of a lead agency for the youth, use of least restrictive alternatives, and access to all programs and services. Youth must have counsel for all decisions affecting placement, services, and his or her well-being. Parents, guardians, and caretakers of youth must have the opportunity to participate as well. Again, the child welfare case should not be closed just because the youth is in the juvenile justice system. 

An unresolved area in the standards is the conflict between the child welfare and juvenile justice systems over using congregate care. Policy advocates urge reducing congregate care facilities in child welfare placements and increasing its use in the juvenile justice system to decrease juvenile incarceration. Advocates also believe, however, that foster youth and juvenile offenders should not be placed in congregate facilities together.

Discharge Planning

Discharge planning should start at or before disposition of the juvenile case. 

Re-entry into the youth’s community should involve all agencies responsible for the youth and focus on these areas:

  • Discharge coordination
  • Housing, education, and employment training
  • All documents necessary for youth to transition to independence
  • Health care
  • Continued services and benefits
  • Identification of case manager for extended child welfare services
  • Expungement/sealing procedures for the delinquency case

The standards further state that youth in custody should be released to parents, relatives, or an appropriate system with their discharge plan.

Additional provisions further describe state structure of child welfare and juvenile justice systems, interstate cooperation, cross-system training between agencies and stakeholders, responsibilities of prosecutors and defense counsel, and special circumstances like pregnant or parenting youth. 

The standards are the result of extensive work by a task force appointed by the Criminal Justice Section in March 2006. After many meetings and review by the CJS Standards Committee and the CJS Council, the standards were finally approved for adoption by the House of Delegates this year. The final proposed standards are the result of extensive review by representatives of the criminal justice, juvenile justice, mental health and child welfare systems. Together, with work across the country by emerging dual-status courts, the standards increase attention, improve coordination and handling of the needs of multi-system youth, and boost outcomes for these young people as they transition to adulthood. 

For more information about the standards, contact Sara Dill, director of standards and policy, ABA Criminal Justice Section, or Linda Britton, director, Commission on Youth at Risk, American Bar Association.

 

Linda Britton, JD, is director of the ABA Commission on Youth at Risk. She also serves as a liaison to the Criminal Justice Section Task Force on Juvenile Justice Standards.