WA Supreme Court to Review Jailing of Foster Youth

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Pat Arthur 510-835-8098 X 3006

Feb 19, 2007 - The Washington Supreme Court is reviewing lower court decisions that allow judges to incarcerate foster children indefinitely as punishment for running away from their placements. Oral arguments were heard by the Court on Feb. 13, 2007.

Youth advocates say the case – centering on two teenage girls sentenced to up to 60 days for running from their placements – raises serious concerns about incarceration, and the failure of the system to address youths’ mental health and other needs. The lack of such support and services for foster youth is contributing to their running away. This marks the first time a state’s highest court has reviewed the constitutionality of juvenile courts using their “inherent authority” to impose lengthy jail terms to punish foster youth for running away.

The case before the Washington Supreme Court, In re Dependency of A.K., involves two girls who were held in contempt by the Yakima County juvenile court for repeatedly running away. They were sentenced to terms far exceeding the maximum seven days allowed for by state statute for what is termed a “status offense.” Upon their release, the girls appealed to the Washington Court of Appeals, which upheld the lower court’s incarceration orders. The appeals court ruled that the lower court had “inherent authority” to sentence foster youth who are chronic runaways to jail in excess of the seven-day statutory limit, provided there is a “reasonable basis” to believe the longer sentence will achieve what a seven-day sentence would not.

Two amicus briefs filed May 1, 2006 cite social science research demonstrating that locking up children who run away from foster homes both harms them and fails to stop them from running away.

“The very reason these youth were placed into foster care—a history of abuse and rejection—makes them more likely to run from a foster care placement,” states the brief filed by three state entities, Columbia Legal Services, TeamChild and the University of Washington Law School Children and Youth Advocacy Clinic, and the National Center for Youth Law, based in Oakland, CA. “Incarceration does nothing to alter those circumstances,” the brief says. Instead, by separating the girls from friends, family and school, it further alienates them.

A second brief, filed by the Washington D.C.-based Bazelon Center for Mental Health Law  and the Seattle law firm of Preston Gates & Ellis on behalf of the American Academy of Child and Adolescent Psychiatry (AACAP), reminds the Supreme Court of its 2003 opinion in Braam v. State of Washington (www.braamkids.org). That opinion led to a landmark settlement mandating, among other things, “timely, accessible, individualized and appropriate” mental health services for all children in foster care.  Failure to fully implement the settlement is contributing to foster youths’ running away, both briefs point out.

“Up to 80 percent of children in this nation’s foster care systems have significant mental health needs,” said Tammy Seltzer, staff attorney at the Bazelon Center and co-author of the AACAP brief. “Courts in a number of states have held that just shutting youth away without appropriate services —whether in jails or treatment centers or large group homes—does nothing to help them.”

Seltzer cited a recent federal court order requiring California’s child welfare system (the nation’s largest) to develop appropriate home- and community-based services for all foster children with mental health needs.

“The child welfare system’s failure to provide appropriate services in safe foster placements is a major reason these youth run away,” said Beth Colgan of Columbia Legal Services.  “Often, they are simply trying to assert control over their chaotic lives in the foster care system.” 

“Kids should not be punished because their families, communities and public systems have failed them,” said Pat Arthur of the National Center for Youth Law. “Foster youth who run away from placements need empathy, compassion and treatment, not jail time.”

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The American Academy of Child and Adolescent Psychiatry(AACAP) is a professional organization of child and adolescent psychiatrists trained to promote healthy development of children and adolescents, and to evaluate, diagnose, and treat them when affected by disorders of feeling, thinking and behavior. For more information, please visit www.aacap.org.

The Bazelon Center for Mental Health Law is the nation’s leading legal advocate for the rights of children and adults with mental disabilities. For more information on the Bazelon Center, please visit www.bazelon.org.

Columbia Legal Services (CLS) is a private, non-profit organization employing lawyers and legal workers who provide legal assistance to low-income and special needs people and organizations in Washington. For more information, please visit www.columbialegal.org.

The National Center for Youth Law (NCYL) is a private, non-profit organization devoted to using the law to improve the lives of poor children nation-wide. For more information, please visit www.youthlaw.org.

TeamChild is a nationally recognized, non-profit civil legal advocacy program for children involved with the juvenile justice system in Washington state. For more information, please visit www.teamchild.org.

The University of Washington Law School Children and Youth Advocacy Clinic (CAYAC) was established in 1996 as a multi-disciplinary program between the schools of law, social work and medicine to provide a holistic approach to child advocacy for children in the dependency system. For more information, please visit www.law.washington.edu/clinics/Child.html.