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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A State-Wide Trauma-Informed Care Approach: Implementation of Stricter Guidelines for Discretion in Child Welfare Cases and a Shift Towards Family Services in the Early Stages

I. Current Landscape

            The good news is that California as a state recognizes the importance of implementing a trauma informed approach to child welfare cases. Assembly Bill 2083 was approved by Governor Brown at the end of 2018. The bill provides a continuum of care provision, which means that foster children will no longer be aged out of the system, and provisions for counties to ensure that foster care placements are actually equipped with training to deal with children who have trauma. The legislation is focused on creating case plans or placements that are tailored to the specific needs of each child, since we know that children entering the system have been through life events that create long-lasting trauma.

            In my view, AB 2083 establishes the threshold for a state-wide approach to child dependency. Assemblyman Ken Cooley, who introduced this legislation, asserts that the bill does the following:

  1. Sets the expectation for coordinated services at the local level for youth who require services from multiple agencies through formalized Memorandums of Understanding.
  2. Requires the Secretary of Health and Human Services and Superintendent of Public Instruction to establish a joint inter-agency resolution team at the State level with certain responsibilities, including but not limited to, providing technical assistance to county agencies to establish local MOUs, and link youth to needed services.
  3. Requires the interagency team to review the availability of appropriate placements (from family homes to congregate care) that are trained and/or supported to provide trauma-informed care to foster youth and make recommendations to the Legislature for improvements in this area.
  4. Requires the interagency team to consult with stakeholders, including practitioners, to develop a plan to increase the availability of trauma-informed services to youth in care.

All of these things are great and a step in the right direction, but what if there were state-wide Memoranda of Understanding that each county agreed upon that addressed the needs of families before children are removed and placed in foster care? Why are there not interagency teams established by the Secretary of Health and Human Services to link parents to drug treatment programs, housing opportunities, child care and job training so that families have the tools to create healthy environments for themselves and their children?

Continue reading “A State-Wide Trauma-Informed Care Approach: Implementation of Stricter Guidelines for Discretion in Child Welfare Cases and a Shift Towards Family Services in the Early Stages”

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.