November 01, 2013

Considering Childhood Trauma in the Juvenile Justice System: Guidance for Attorneys and Judges

Renee VandenWallBake

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.

The juvenile justice and family court system has the overarching goal of obtaining treatment and rehabilitative services for the children and families that enter the courthouse doors.1 Often the cases in these two systems overlap and parents that are the subject of a neglect or abuse case also have a child with a status offense or public offense case.2

Recognizing that childhood trauma may be at the heart of the status offense or public offense is essential to ensuring that the child receives proper treatment and to prevent recidivism. 

Legal experts, mental health professionals, and child welfare specialists have called for the court system to engage in a trauma-focused approach. In a trauma-focused court, all players are educated on the effects of trauma and view the child’s behavior and the case itself through this lens.3

The Prevalence of Trauma in the Juvenile Justice System

Many youth who encounter the juvenile justice system have experienced or witnessed domestic violence, abuse, or neglect. A nationwide study found that 70 percent of children placed in a residential facility because of a status offense or public offense have experienced trauma.4 Another study found that the rates of Post-traumatic Stress Disorder (PTSD) in children who are involved in the juvenile-justice system are about the same as for soldiers returning from deployment in Iraq.

Girls are much more likely to have experienced trauma and are more likely to be placed in residential care for a status or public offense than boys.6 Children who have undergone trauma are profoundly affected and their experience has serious implications for their case in the juvenile justice system. For some youth, the juvenile justice experience may itself be retraumatizing, eliciting feelings of loss of control, and triggering memories and reactions of prior trauma.7 Thus, there is a need for the court to be sensitive and responsive to a youth’s history of trauma.8

Considerations for the Child’s Attorney

The natural place to begin a trauma-focused approach is with the child’s attorney, who has the most information about the child and is in a position of trust and influence with the child throughout their case. Juvenile defense attorneys9 have an ethical responsibility to assess their client’s mental health needs10 but also to represent the express interests of their client,11 which can be an empowering and cathartic experience for the child.12

Diversion from the Court System

There is a myth that a child and family can only receive mental health services and treatment if they are involved in the court system. Not only is that not true, but involvement in the court system can cause a child and family more problems as they must miss work and school for court hearings and face possible loss of custody and institutionalization.

Research and experience have taught us that children with mental health needs belong in the community receiving evidence-based treatment, not the court system.13 Attorneys who identify that their client has a mental health need or have a history of trauma should vigorously advocate for the case to be diverted,14 informally adjusted,15 or otherwise resolved in a way that does not expose the child to the potential for future incarceration and penalties. Attorneys should use the Court Designated Workers in their court as well as programs such as Reclaiming Futures16 or the Restorative Justice Program.17 Any diversion plan should be crafted with the input of the child, their family, and service providers and use positive incentives for compliance. A plan will not be successful if the child and family is not invested in it.18

Competence and Capacity

If the attorney is unsuccessful in getting a delinquency or status offense case diverted or informally adjusted, the client’s competence and capacity to continue through the justice system should be seriously examined. Children who have experienced domestic violence are affected on a physical and psychological level. Chronic abuse can affect the brain’s synapses and neuronal pathways.

Abuse during the crucial period of the child’s brain development has been linked to difficulties in school, peer relationships, impulse control, and anger management.19 Children who have experienced physical abuse are also at risk for Traumatic Brain Injury.20 A child that may appear to be unruly or even violent may actually be incapable of conforming his/her conduct, and21 therefore, may not have had the capacity to commit the offense.22

The court, as well as the child’s attorney,23 has the obligation to determine if a child is competent to stand trial.24 While one might think that all children are incompetent to some degree, and when compared to adults, this may be so; however, for a child to benefit from the court experience and any treatment that may result, they must understand what is happening and why. In fact, for a child who has experienced loss and instability, not understanding the court process may cause the child to feel helpless and out of control, causing further trauma.

Competency involves the ability for the child to understand the legal proceedings, the role of their attorney, judge, and prosecutor, and the consequences they face in the justice system.25 For example, a child who has a long history of social workers and service providers in their life may think that their attorney is one of these and is required to tell their parents or the judge what they have told them; when in reality the opposite is true. 

A child with a history of trauma at the hands of an authority figure may not be able to “open up” or trust their attorney, which is crucial for their ability to aide in their defense.26 If a child cannot withstand the stress of court proceedings, pretrial detention, or behave appropriately in court, they may be incompetent.27 If the child is incompetent, their case should be dismissed until such time that the child becomes competent. The court may also amend the petition to a dependency action if the child is in need of services during that time.28

Criminal Responsibility

Research demonstrates that children who have experienced trauma mature at a slower rate than their counterparts.29 This means that children who have experienced trauma may be more impulsive, more susceptible to peer pressure, and less able to appreciate the consequences of their actions than children of like age. U.S. Supreme Court precedent states that children are categorically less culpable because of these characteristics.30 Since these characteristics may be more pronounced in children who have experienced trauma, the child’s attorney should determine whether to litigate issues of a waiver of Miranda rights,31 consent to search, and defenses—particularly self-defense—through a trauma-focused lens.32 Even if the child desires to plead guilty to an offense, the attorney must be careful to ensure that he or she is not unduly susceptible from pressure from parents, the court, or even the attorney. The child must truly understand what a guilty plea means and what consequences it entails.33

Considerations for the Court

Our juvenile justice system allows for the court to treat each case and each child according to their unique circumstances and needs. The court is tasked with striking a delicate balance between the child’s best interest and protecting the community.

These interests converge when a child is given tailored treatment to address the heart of the child’s behavior and stem the risk of reoffending. A trauma-focused court creates a sensitive environment through the language that the court uses, how the court addresses a parent, and its pre-and postadjudication orders so that there is no further trauma to the child and to ensure that the child receives appropriate treatment.

Treatment of the Family

A child in the juvenile justice system may have a parent that has a history of violence towards the child or other family members in the household. The parent might also be a survivor of violence themselves and may have untreated mental health needs. While the instinct may be to cut off the parent from the child, research shows that engaging the parent and family is vital to the child’s success.34 A trauma-focused court does not restrict contact with a parent or remove the child from the parent unless it is imperative for the health and safety of the child. There are many resources available to the court if it is concerned about the safety of the home. The court can order home monitoring and can order the parent to participate in treatment, such as family therapy, parenting classes, and support groups.35

A court that fosters the participation of parents and other family members in the case and treatment ensures that the child has role models and support in their lives and fosters an environment of support and respect.

Use of Secure Detention

Federal law strongly opposes the incarceration of children for a status offense.36 Kentucky law has many procedures and mechanisms that limit the incarceration of status offenders, but courts have great latitude to punish a child for violating a court order by placing them in secure detention.37 In addition, the court can place a child in secure detention for 45-90 days at disposition for a public offense.38 For a child with a history of trauma and abuse, being placed in a locked secure placement can be retraumatizing.

Children who suffer from Post-traumatic Stress Disorder have difficulty responding appropriately to authority figures and strict rules, as is required in secure placements. This can lead to incidences of restraint and isolation, which can cause more psychological harm and a downward spiral.39 Even short periods of incarceration interrupt vital therapeutic and educational services. Thus, while courts should be hesitant to incarcerate any status offender, a trauma-focused court would place even more emphasis on the use of alternatives such as community service, home detention, and graduated sanctions.

Disposition Considerations and Alternatives

At disposition, the Kentucky Unified Juvenile Code requires the court consider  appropriate treatment options given the specific needs of the child.40 It is statutorily preferred that the treatment can be given in the community rather than in a residential facility. Removal of the child from his/her family should only be considered after all other alternatives have been exhausted.41 All of the players in a trauma-focused juvenile justice system—defense attorney, probation officer, judge—focus on dispositional options that are tailored for children with a history of trauma. This includes evidence-based practices and trauma-focused therapy, family counseling, mentoring, and special education services.42

A behavior modification approach will be unsuccessful if trauma-focused treatment is not also part of the solution. For example, dispositional orders that simply require a child to go to school attempt to modify the child’s behavior through reward and punishment. Such an approach may be unsuccessful because there is no inquiry or remedy for why the child is not going to school. 

Perhaps the child does not want to go to school because it is near an abuser’s home. They may be bullied at school. They may be afraid to leave the side of their parent, who was the victim of abuse. A court order forcing them to attend may cause more trauma for the child and ignore the underlying issue. It may be difficult to root out the cause of the child’s behavior, but with help from professionals and some patience, a tailored resolution can be reached.

The juvenile code requires the court to make specific findings about treatment. Thus, the juvenile or family court judge is in the best position to ensure that the disposition fits the child’s needs by enforcing the dispositional plan through court orders. Just as incarceration can retraumatize a child, so too can placement in a residential facility.

The court can ensure that the child is receiving appropriate treatment, such as trauma-focused care, by ordering treatment, rather than commitment. Even if commitment is ordered, the court has the authority to terminate commitment if the child is not receiving appropriate therapeutic services.43

Conclusion

Children are exceedingly resilient and capable of reform. Their chances of success are greatly increased with positive adult influences and when they are invested in the plans for their future and the future of their family.44 By incorporating a trauma-informed approach, the juvenile justice system ensures that children who have experienced trauma are empowered to heal, avoid retraumatization and the over-criminalization of this population, while also serving the needs and interests of the community. 

Renée VandenWallBake is a staff attorney with the Juvenile Post Disposition Branch of the Kentucky Department of Public Advocacy. She has advocated on behalf of children in the child welfare and juvenile justice system for almost 10 years, including work with the Juvenile Division of the Legal Aid Society of New York City and the Center for Children’s Advocacy in Connecticut. She is an honors graduate of the University of Connecticut School of Law, where she was an executive editor of Connecticut Law Review.

Printed with the permission of the Kentucky Bar Association. Note that the article does not reflect the opinion of the Kentucky Department of Public Advocacy.

Endnotes

1. KRS 600.010 (2)(a).

2. A status offense is a charge that would not be a crime if the child was an adult. This includes missing school, running away from home, and being unruly at home. KRS 600.020(59)(a).

3. National Council of Juv. & Fam. Court Judges. Ten Things Every Juvenile Court Judge Should Know About Trauma and Delinquency [Ten Things], 2010, 12. For more guidance on creating a trauma-focused court, see National Child Traumatic Stress Network. Criteria for Building a Trauma-Informed Mental Health Service System (December 2007); Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth with Mental Health Needs in Contact with the Juvenile Justice System [Blueprint for Change]. 2007.

4. Sedlak, Andrea J. & Karla S. McPherson. Youth’s Needs and Services: Findings from the Survey of Youth in Residential Placement, U.S. Office of Juvenile Justice and Delinquency Prevention, 2, tbl.1, April 2010, available at www.ncjrs.gov/pdffiles1/ojjdp/227728.pdf.

5. Ten Things, 4.

6. Id. at 6, fig.4.

7. Blueprint for Change, 43.

8. Id.

9. A guardian ad litem has a different responsibility than a defense attorney, but should consider a child and family’s trauma history when considering their best interest. This consideration is best made with the assistance of an expert.

10. Nat’l Juvenile Defense Standards, 1.7 (2012); 2.1 Commentary.

11. Id. at 1.2.

12. The therapeutic effect of giving a child a voice in court and the impression that they have been treated fairly and justly was recognized by U.S. Supreme Court in 1967 in the landmark case In re Gault, 387 U.S. 1, 26, 87 S. Ct. 1428, 1443, 18 L. Ed.2d 527 (1967).

13. Blueprint for Change, 5.

14. KRS 610.030(2); 630.050; 635.010(1)(e).

15. KRS 610.100(3).

16. For more information about Reclaiming Futures, see www.reclaimingfutures.org.

17. For more information about Restorative Justice, see http://kcrj.org.

18. For further guidance in creating a diversion plan, see Models for Change, Juvenile Diversion Guidebook, 2011, and Nat’l Center for Juvenile Justice and Mental Health. Juvenile Diversion: Programs for Justice-Involved Youth with Mental Health Disorders, 2006.

19. U.S. Dept. Health & Human Services, Child Welfare Information Gateway, Issue Brief, Maltreatment on Brain Development, November 2009, available at www.childwelfare.gov.

20. For more information about Traumatic Brain Injury in children, see the Brain Injury Alliance of Kentucky.

21. Ten Things, 7.

22. Competency is the ability to understand the proceedings and aid in one’s defense. Capacity is the mental ability to form the requisite intent. The law does not hold one responsible for actions if at the time of the offense they lacked the substantial capacity to appreciate the criminality of his/her conduct or conform his/her conduct to the  requirements of the law. KRS 504.020. For more information on how trauma affects  capacity and competency, see Marty Beyer, “What’s Behind Behavior Matters: The Effects of Disabilities,Trauma and Immaturity on Juvenile Intent and Ability to Assist Counsel,” Guild Prac. 58, 2001, 112.

23. For an excellent article exploring the ethical obligations for attorneys representing juveniles who they suspect are incompetent, see David R. Katner. “The Ethical Struggle of Usurping Juvenile Client Autonomy by Raising Competency in Juvenile Court.” Southern California Interdisciplinary Law Journal, 16, 2007, 293, 304.

24. See KRS 504.100(1); Padgett v. Commonwealth, 312 S.W.3d 336, 345 (Ky. 2010) (requiring the court to order a competency evaluation if there are sufficient facts raising concerns about competency, even if defense counsel has not raised the issue).

25. One is legally incompetent if “as a result of mental condition, [one has a] lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one’s own defense.” KRS 504.060; see also RCr 8.06. The test for competency is generally referred to as the Dusky standard after the U.S. Supreme Court case Dusky v. United States, 362 U.S. 402 (1960).

26. See Larson, et al. “Developing Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: Guide for Lawmakers.” Models for Change, 2011, 14.

27. See Richard E. Redding & Lynda E. Frost. “Adjudicative Competence in the Modern Juvenile Court,” Virginia J. of Social Policy & the Law 9, 2002, 353, 358.

28. See 610.015 (13) (permitting the court to “amend the petition to reflect jurisdiction pursuant to the proper chapter of the Kentucky Unified Juvenile Code.”).

29. Beyer, What’s Behind Behavior Matters.

30. Graham v. Florida, 130 S. Ct. 2011, (2010); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, (2005).

31. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). For a discussion of Miranda, confessions, and other legal issues in juvenile cases, see Steven A. Drizin & Greg Luloff. “Are Juvenile Courts a Breeding Ground for Wrongful Convictions?” Northern Kentucky Law Review 34, 2007, 257, 266.

32. Since children with PTSD are often in a state of hypervigilance, they may see people or situations as threats and react aggressively without realizing it. See Ten Things, 7.

33. See Boykin v. Alabama, 395 U.S.238, 89 S. Ct. 1709 (1969); J.D. v. Commonwealth, 211 S.W.3d 60 (Ky. App. 2006).

34. Ten Things, 10.

35. KRS 610.160.

36. See Juvenile Justice and Delinquency Prevention Act, 42 USC §5701 et seq.

37. KRS 630.070.

38. KRS 635.060(4)-(5).

39. Nat’l Child Trauma Stress Network. Trauma among Girls in the Juvenile Justice System, 2004, 7; see also Julian D. Ford, et al., Nat’l Center for Mental Health & Juv. Justice. Trauma among Youth in the Juvenile System: Critical Issues and New Directions, 2007, 3.

40. KRS 610.100; 610.110.

41. KRS 600.010(2)(c)- (e).

42. Ten Things, 9. For a database of treatment strategies to help children with trauma, see the National Child Trauma Stress Network, Promising Practices, www.nctsn.org.

43. KRS 610.120 allows the court to terminate a dispositional commitment if the child is no longer benefitting from treatment.

44. Ten Things, 11.