Inequality for Youth: Why Do Foster Youth & Juvenile Offenders Receive Different Treatment?

I. Introduction: How Does Society Want To Treat Its Children?

            There is a shared belief in society that children should grow up in environments that are conducive to living healthy and productive lives. There are certain things that we believe that all children need and deserve. Those beliefs are even enshrined in the Convention on the Rights of the Child, which sets out the rights that must be realized for children to develop their full potential: to be free from hunger and want, neglect and abuse. When these things might be lacking, society has in place mechanisms to try and remedy those deficiencies. Judge Leonard P. Edwards, in an article for the National Council of Juvenile and Family Court Judges, wrote that “[w]hen the family fails or is unable to rear its child within acceptable norms, society has an interest in intervening to achieve its own goals.” Children are our future and it is the shared goal of a society to raise them as best we can. However, there are times when circumstances compel the state to act in the best interest of the child.

            It is because of that fact that society has procedures and systems to protect and nurture children to the best of our ability. Some youth are removed from their unsafe homes and placed into foster care and some youth commit offenses and are then incarcerated. In my last post, I wrote about how children in the juvenile justice system face similar traumas as children in the foster care system might experience and are often even the very same children, yet the treatment they receive is vastly different. The question is why? What is different about the youth that would necessitate a difference in treatment? These youth are often the same and they have all experienced similar trauma. Yet, because of a few different circumstances surrounding the trauma these youth might be experiencing (being removed from their homes and placed in foster care vs. being removed from their homes and being incarcerated) they receive different support.

            Society also collectively believes that children under a certain age lack a “level of maturity, thought process, decision-making, and experience” compared to individuals above the age of majority. We therefore generally distinguish between children and adults with regard to criminal culpability “We punish [criminal acts] because we believe such harm is morally deserved by a particular individual for a particular act.”  However, is that what we want for our children? We recognize that children should be treated differently than adults and that rehabilitative measures would be better for them and society, yet the reality is considerably different. In Miller v. Alabama (2012), a 14-year-old committed murder and was sentenced to life in prison without the possibility of parole. The Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment, writing “that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform…they are less deserving of the most severe punishments.”

There is certainly a different societal view on the two populations, foster youth and juvenile justice youth, but they are all still children and youth that are deserving of all that we believe children deserve. Both systems can be traumatizing, but we tend to think one set of youth deserve what they are getting because they have committed some criminal/delinquent act. This is especially true for children and youth that commit particularly heinous or violent crimes because instinctively, we believe they should be punished.  This idea is given credence in Chief Justice Roberts’s Miller  dissent, where he wrote “society may determine that [protecting the innocent from violence] requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency.” Yet the fact that these children and youth still are treated differently despite experiencing similar trauma is unjust. These children all deserve similar support when they experience difficult circumstances.

            In this post I will go through a brief overview of the criminal justice system and juvenile justice system as well as the theories underlying them. Then I will discuss issues with the juvenile justice system and its implementation and some of the realities of juvenile justice. I will also discuss some reforms to the issues addressed. Finally, I will discuss possible policy suggestions and further plans of action.

Continue reading “Inequality for Youth: Why Do Foster Youth & Juvenile Offenders Receive Different Treatment?”
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Stage 4 of 4: How Schools Can Improve the Academic Achievement of Youth with Trauma

I. Introduction

Part of what drove me to law school was a desire to leave the teaching profession. I left undergrad in 2008 and had been working with kids ever since. What I learned very quickly was that many of the youth I worked with had needs that I could never meet. The needs they had were not just educational. Many of the times they had emotional needs that I did not know how to handle. I cared SO much and yet felt so helpless. 

For my research this semester, I focused on youth in the foster care system as well as foster-adjacent youth because they ALL deal with some type of trauma. These youth have behavioral issues inside the classroom as a result of trauma from childhood (see my first post for more on how trauma directly impacts a youth’s education). The educational data is shocking. Youth in foster care are severely behind in reading, writing, math, and graduating from high school (for more on this, please see my second post). Most recently, I looked at what I thought were the 6 most common barriers that schools (teachers in particular) face when confronted with a student with trauma (post three). 

All of this research has led me to this final stage. How can schools effectively address the educational and emotional needs of youth with trauma? In this paper, I will discuss the various ways that schools can overcome the barriers I mentioned in my third post by examining how and why schools need to become “trauma-informed”, provide extracurricular activities, provide more counselors and reduce class sizes. 

Continue reading “Stage 4 of 4: How Schools Can Improve the Academic Achievement of Youth with Trauma”

Sense of Community: Basic Challenges Facing Transgender and Gender Nonconforming Youth in Foster Care

Dr. Ryan T. Anderson of The Heritage Foundation has made a career of late arguing that transgender people are merely making a choice regarding their identity and not affirming openly a fact that their gender identity fundamentally differs from their sex at birth. People like Dr. Anderson, PhD,  know, or believe they know, or think they know, what it means to be  transgender/gender nonconforming (TGNC). They believe it to be fundamentally an act of choice: to reject one sex and elect to be part of another.  They are partially correct; in some manner, there is a choice. But the choice isn’t between genders, or sexes, or sexuality, but rather a choice of whether to live life as one’s authentic self or to keep hidden from the world a basic internal truth of who one is as an individual.

Gender Identity [PDF Pg. 4], as defined by the American Psychological Association, is “[a] person’s deeply-felt-, inherent sense of being a boy, a man, or male; a girl, a woman, or female; or an alternative gender (e.g., genderqueer, gender nonconforming, gender neutral) that may or may not correspond to a person’s sex assigned at birth or to a persons’ primary or secondary sex characteristics. Since gender identity is internal, a person’s gender identity is not necessarily visible to others.” The same APA definition goes on to state that one’s “affirmed gender identity [. . . ] refers to a person’s gender identity after coming out as TGNC or undergoing social and//or medical transition process.”

In this post, I will discuss the issue of visibility and community for TGNC youth, I will talk about how TGNC foster youth have exceptionally bad outcomes even when compared to non-TGNC youth in foster care, and finally, I will briefly touch on the existing Foster Youth Bill of Rights in the California Welfare and Institutions Code. Continue reading “Sense of Community: Basic Challenges Facing Transgender and Gender Nonconforming Youth in Foster Care”

White Saviors are Not Saving Children

While many of us would like to believe we live in a post racial era, where everyone is seen and treated as an equal, unfortunately, that just isn’t so. In many of our systems, even those designed to do good and help others, race matters a great deal. One such system is the child welfare/ foster care system. It’s no secret that children of color are overrepresented in this system. This has been acknowledged for many years. In this series of posts, I aim to address why race matters in this system, how the race and culture of a child should be considered in his/her foster care placement, and the ways in which we can work to make the system better for children and families of color.

Before we dive into talking about racial disparities, implicit biases, and sifting through whether or not the child welfare system is racist and what that really means, there’s something that I think is important to acknowledge and understand: discussing race often makes people uncomfortable, defensive, and sometimes angry. I believe it is critical to establish the lens through which I am viewing and discussing this issue.

Continue reading “White Saviors are Not Saving Children”

Who’s Watching the Watchers? – How Overrides Undercut Well-Measured Assessment Tools

In my last post we personified the real-life implications of discretion in the child welfare systems and how it can create inconsistency. We will now review current statutes, California’s most widely used policy manual, (the structured decision-making tool (SDM)), and culture of the agencies involved to uncover exactly why and how discretion can create inconsistencies that inflict further unnecessary trauma. The problem is not that child welfare agencies have discretion – every unique family deserves a response that best suits them – the problem is that this discretion is unfettered. There are clear steps and guidelines; however, a social worker can use something called an “override” (p.5) to change the course of a child welfare case based on their personal judgment. In this post I will illuminate unchecked discretion can have negative consequences for families.  

            It is important to have an overview of the juvenile dependency process before we go into the issues. First, a report of neglect or abuse is made to the child welfare service. These reports can be made by a law enforcement agent, officials at the child’s schools, family members, etc. Once a report is made, an official at the child welfare agency will determine whether and how quickly a response is warranted. Once a social worker responds, they have to make assessments about the risks of the child’s situation to determine what the best course of action will be (ie: open a case and work with the family, close the case, or remove the child). A social worker is to make those decisions, with or without the approval of a supervisor, using the SDM. These determinations will not be reviewed by a judge until the child welfare agency has a detention hearing, which can take days or weeks. 

I. Evaluation of Relevant Statutes

            California Welfare and Institution Code § 300 defines state law on the issue of removal. The subsection relevant to substance use related neglect is as follows:

(b)  (1)  The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. A child shall not be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family. 

If a report comes in and gets substantiated, a social worker can launch an investigation. If, during the course of investigation, it is determined that there is substantial risk of the child suffering then WIC § 300 is the controlling statute for removal. Although there are different potential causes for removal according to the statute, I would like to focus on substance use related neglect since this issue is at the heart of the overwhelming majority of child welfare cases.

            I would like to break down this statute to identify where the law grants discretion which creates opportunities for agents of the state to subjectively evaluate conditions. First, what constitutes “substantial risk?”  The statute lists substance abuse as a cause for willful or neglectful failure to care, but it does not state that that substance abuse automatically creates a substantial risk that the parent will willfully or negligently fail to care for the child.

            The determination of whether or not a child is at “substantial risk” is subjective and these crucial decisions are largely made by a case worker, with approval of a supervisor if there are issues that require overrides. Overrides are when a social worker uses their clinical experience to make judgment calls outside of the guidelines in the SDM. (pp. 8-9) This type of discretion is subject to implicit biases that social workers might carry, especially when it comes to substance use disorders.

            In many cases, substance use disorders can constitute grounds for removal; however, there is evidence that removal is typically not the best one for the child or parent involved. A child being yanked out of their home by strangers is extremely traumatic and is likely to cause long term suffering and issues; however, in some situations that might be in the best interest of both the parent and the child. Removal can have a positive impact on some parents by giving them a reason to begin to make serious life changes, but it can also drive a parent further down the rabbit hole of addiction by taking away the only thing that gave them hope to keep fighting to make those changes. Issues with removal are very complex and need to be tailored to individual situations, that is absolutely a fact. That fact is also the reason why these decisions should not be completely susceptible to the judgment of one social worker (and possibly a supervisor) without any safeguards or protection. Of course, discretion can also be used in ways that have a positive impact on families. However, this statute leaves a lot of room for subjectivity without any safeguards when making such a crucial decision about the trajectory of a child’s life.

            Next, California Welfare and Institutions Code § 309(a) governs the responsibilities of the child welfare agency to keep a child with their parent or at least, place the child with a family member. The law regarding placement is as follows:

309 (a) Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the child’s being taken into custody and attempt to maintain the child with the child’s family through the provision of services. The social worker shall immediately release the child to the custody of the child’s parent, guardian, Indian custodian, or relative, regardless of the parent’s, guardian’s, Indian custodian’s, or relative’s immigration status, unless one or more of the following conditions exist:

(1) The child has no parent, guardian, Indian custodian, or relative willing to provide care for the child.

(2) Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a relative.

According to this statute, the child welfare agency “shall… attempt to maintain the child with the child’s family through the provision of services.” The agency is not mandated to maintain the child with the child’s family through the provision of services. However, the agency is also not allowed to fail to exert any effort to maintain the child. This leaves the standard regarding continued detention – which states that it should only be used if there is immediate and urgent necessity for the protection of the child and there are “no reasonable means” that could protect child in their home or the home of a relative – subject to human judgement once again. Do “reasonable means” look the same in every case?

            Lastly, California Welfare and Institutions Code § 361.4 governs the emergency placement of children who have been declared dependents of the state and is as follows:

 (3) Notwithstanding paragraph (2), a child may be placed on an emergency basis if the CLETS information obtained pursuant to paragraph (2) of subdivision (a) indicates that the person has been convicted of an offense not described in subclause (II) of clause (i) of subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, pending a criminal records exemption decision based on live scan fingerprint results if all of the following conditions are met:

(A) The conviction does not involve an offense against a child.

(B) The deputy director or director of the county welfare department, or his or her designee, determines that the placement is in the best interests of the child.

(C) No party to the case objects to the placement.

WIC § 361. 4 outlines the standards for clearing potential emergency placements in regard to criminal records. The statute indicates that placements can be approved even if the person who is intending to take temporary custody of the child has a criminal record, so long as the other conditions are met. One of these conditions is that “the deputy director or director of the county welfare department, or his or her designee, determines that the placement is in the best interest of the child.” This means that determining whether or not a family member is the best option for placement of a child despite a criminal conviction is ultimately left up to the judgment of a human with their own subjective beliefs. I would be interested to know how the agency would determine what was in the best interest of the child.

            As you can see, all of the statutes discussed above have discretion built into them. Like mentioned above, discretion can be used for positive outcomes like keeping families together, placing children with relatives who might have criminal records, or promptly removing kids out of dangerous situations when the SDM might not call for those actions. However, in light of the entire process and the lack of guidance or oversight until after these decisions have been made, and the fact that these decisions can have traumatic consequences that cannot be undone it should not be so easy to use discretion to circumvent a well-established tool.

II. The Role of Risk Assessment

            Every county in California utilizes the structured decision-making tool to inform their decisions regarding child dependency. Levels of risk determine the decisions made by the child welfare agency involved about a particular case. The section regarding substance abuse of a caregiver states,

The caregiver is diagnosed with chemical dependency or abuse AND is currently using. Current use does not require that caregiver be under the influence at the moment of the call, but that the caregiver has used within the past two weeks and has not entered into a formal or informal program to achieve abstinence; OR The caregiver is using illegal drugs; OR The caregiver’s alcohol use suggests a probability that dependency or abuse exists, such as blackouts, secrecy, negative effects on job or relationships, identified drinking patterns, etc. (p.28)

I thought it was interesting that a person with a substance use disorder (not alcohol) can be classified as neglectful even if they haven’t used in two weeks, yet a person with an alcohol dependency is afforded a more thorough evaluation of how their drinking affects their ability to care for the child.

            The structured decision-making tool is intended to assist child welfare agents make risk assessments throughout the process described earlier. However, not every decision will be dictated by the SDM because each and every step recommends a certain action but also gives an easy “check this box and explain” override option that can be used retroactively.

            This seems like a major problem. Let’s look closer at the override options to uncover how “checking a box” to avert the recommended course of action can be problematic. The first step in the SDM is determining whether or not the report requires a response and this step has an “override” option. (p.5) This is when the agency has received a report of neglect and is determining the next course of action.

Continue reading “Who’s Watching the Watchers? – How Overrides Undercut Well-Measured Assessment Tools”

The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved

As mentioned in my introductory post, the focus of my research will be the discretion granted to government agents to make determinations about when a parent’s substance use disorder constitutes cause for removal of children. I would also like to address the discretion granted to make determinations about placement of those children. This post will outline and personify the issue in preparation for my next post which will dissect policy, statutes, and current procedure to identify the places where discretion leaves the current system subject to inconsistency.

I. Background and Context of the Problem

            The right to raise your children without government interference is fundamental. Meyer v. Nebraska, 262 U.S. 390, 403 (1923). However, in critical situations the government has long reserved a right to take action to protect the interests of children in our society. One of these critical situations is when the parent’s substance use disorder affects their ability to care for the child. However, determining when the disorder actually constitutes neglect is largely up to the discretion of the agencies involved.

            Society has long treated addiction as a personality defect; however, things are starting to shift. The U.S. Surgeon General released a report in 2016 which outlined the benefit of shifting to a public health approach when viewing substance use disorders. Even the terminology which is used to discuss the population affected by substance use has changed – the recommended description is no longer “drug addicts.” It is now, “individuals with substance use disorders.” The language used may seem like mere minutia, but it symbolizes a move away from faulting the individual for the substance use disorder that they have developed. Trauma accumulated from adverse childhood experiences that carry into adulthood often drive parents to find solace in the “escape” provided by substances. Many parents who have substance use disorders have no desire to hurt their children and they would never allow their children to suffer but for the disease that has a hold on them.

            The drug epidemic has dramatically increased the number of children involved in the child welfare system. Unfortunately, government agencies aiming to protect children in California (and across the country) have not shifted to a more trauma-informed, rehabilitation focused approach or simply do not have the resources to do so. This takes us to the heart of the problem: how does the government effectively decide when substance use disorders deem a parent unfit? Does a substance use disorder automatically render a parent unfit to care for their child?

            Currently, it seems that protocol is more or less very lax and leaves a lot of discretion for government agencies to decide when actual intervention is necessary, when removal is essential, and when overrides are acceptable. Overrides are when a social worker or decision maker in the welfare agency decides to deviate from what would be “proper protocol.” In almost all offices overrides are perfectly fine even if the override is rationalized after the fact. Policy and discretionary overrides allow a social worker to factor the outlined criteria against his or her own judgment and knowledge of the case. (Please see pp. 151-153.) The possibility of overrides is present throughout the entire process, from removal all the way until reunification. This often results in an inconsistent application of the law on a case-by-case basis and can inflict unnecessary trauma on the children and the parents involved with little accountability.

            California Welfare and Institutions Code § 300 dictates removal, and California Welfare and Institutions Code § 309 creates guidelines for placement and asserts that a child who is removed should at least be placed with a relative unless there are no reasonable means to do so. Both of these statutes and existing policy give county agencies substantial discretion to make these critical determinations. In my next post I will thoroughly break down California WIC §§ 300 and 309.

            II. Personification of the Problem

           A lawyer once told me a story about a family that highlighted the inconsistency of application of the law when it comes to removal of children for substance use disorders. Consider a family with two mothers who are cousins by marriage – one mother was raised in a stable household and the other mother was raised in a tumultuous environment with heavy substance use.

Continue reading “The Current Structure of the Child Welfare System in California Creates A “Damned if you do, Damned if you Don’t” System, Unnecessarily Inflicting Trauma on Those Involved”

When Discretion Goes Wrong: Government Agencies and Removal of Children.

Hi, I’m Lauryn Barbosa and I am a second-year student at Santa Clara University School of Law. I was born and raised in the Bay Area and received a B.A. in Intercultural Peace and Justice Studies, with a minor in History, at Holy Names University in Oakland. During my undergraduate studies, I was exposed to, and became passionate about, social justice. What I learned about the injustice of our criminal “justice” system, coupled with the experiences of members of my family affected by that system, drove me to attend law school. I hope to become an attorney to advance social justice by representing indigent clients in criminal defense.

Throughout this policy seminar, I will be exploring the role that the police and the Agency ― the majority of California counties refer to Child Protective Services under that moniker ― play in the removal of children and how reliance on its discretion results in an inconsistent application of the law. In 2018, the United States Court of Appeals for the Ninth Circuit held in Demaree v. Pederson that “there is no qualified immunity for investigators who remove children from a home without a warrant or immediate threat of serious physical harm to the child at all.” In this instance, a couple appealed an order of summary judgment in favor of a social worker who was alleged to have committed a violation of their constitutional rights. The couple faced criminal charges and their children were removed from their home for a month after a Wal-Mart photo technician reported photos of their children in the bathtub. A police officer made an unsubstantiated recommendation that the children were being sexually abused, which the social worker decided was determinative ― even though the children underwent medical exams for sexual trauma that came back normal and there was no other evidence. While this decision was essential for accountability and should be celebrated, this is just one instance in a sea of many where the state’s intervention did much more harm than good.

As mentioned above, local agencies retain broad discretion, under California Health and Institutions Code § 300, to remove children and this often leads to inconsistent application of the rules, especially when it comes to substance abuse related neglect. This is the niche area I will hone in on. Because every family situation is unique, I understand the necessity of some discretion on the part of the government agencies. However, I believe this unbridled discretion has created a culture where children are either snatched away from their families and placed in foster care preemptively or suffer serious harm or death because the state refuses to step in. There has to be a way to develop better statutory and policy standards that can hold the Agency and the police accountable before the only relief available is a lawsuit, since at that point the damage is already done and the trauma has already been inflicted.

This area is of particular interest to me because I have witnessed the lives of children be severely impacted by the decisions of the police and the Agency in this exact area and the courses of action were drastically different in each case. While the cases I witnessed first-hand will not be the focus of my research, I will use other cases to compare the facts and identify patterns in the actions of the Agency and police officers regarding the removal of children. I will also use current police manuals and policy guides to demonstrate the issues with current protocol. I am intending to use those patterns and current policy guides to formulate policy recommendations that will provide for a more consistent application of the state’s obligation to protect children under California Health and Institutions Code § 300.