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October 2006The New WSBA Juvenile Law Section: What Is Juvenile Law?This month’s “Executive’s Report” proudly introduces the WSBA’s New Juvenile Law Section. I have asked Kim Ambrose to be guest columnist and cover the history, purpose, and goals of the WSBA’s newest section. — Jan Michels Fifteen-year-old Jessica1 did not feel safe going home. She finally told a school counselor, who called Child Protective Services and referred her to a domestic-violence counselor who helped her petition for a protection order against her father. She was questioned by the police. One thing led to another, and she found herself in a foster home, alone and questioning her decision to speak up. Her father kept trying to contact her and talk her into coming home, and told her that she was responsible for her mother getting sick and going to the hospital. Jessica left the foster home and stayed with a friend. She tried to get to school but she was now a two-hour bus ride away and she did not want to be reported to Child Protective Services. So, she stopped going to school. Jessica was caught shoplifting at Target and taken to the Department of Social and Health Services office by the police. Jessica has legal issues.
Jessica needs lawyers who understand her unique characteristics as a young person and the particular laws which affect her life. Her story highlights some of the different legal issues, the lawyers who intersect in the lives of children and youth in our state, and why the WSBA has created a new Juvenile Law Section for lawyers and advocates who focus their practices in these areas. The Creation of the New WSBA Juvenile Law Section In June 2006, the WSBA Board of Governors approved the creation of a new Juvenile Law Section. The idea had been discussed for several years among lawyers and judges working in and around juvenile court and was one of the recommendations of the 2003 American Bar Association- and WSBA-sponsored Washington Assessment of Access to Counsel and Quality of Representation in Juvenile Offender Matters. In the fall of 2005, two efforts were simultaneously underway to move the discussion to action: (1) the Juvenile Subcommittee of the WSBA Committee on Public Defense was working to implement the recommendations of the Washington Assessment, including the formation of a WSBA section, and (2) Justice Bobbe Bridge convened a diverse group of lawyers and bar leaders whose work touches the lives of children and youth. This group included a juvenile prosecutor, juvenile offender and dependency defense attorneys, an assistant attorney general, legal-services attorneys, and law-school professors. Although the roles of these lawyers varied widely, the desire for a place to come together around the numerous legal issues affecting children and youth was unequivocal. In the end, the combined efforts of the group convened by Justice Bridge and the WSBA Juvenile Defense Subcommittee laid the groundwork for an inclusive, diverse section of lawyers and advocates whose practices focus in some way on the lives of children and youth. After much discussion, the framers of the section settled on the name “Juvenile Law Section” — a title broad enough to encompass the many different areas of practice which involve children and youth. The purpose of the Juvenile Law Section was originally articulated in the petition to the WSBA Board of Governors as follows: The Juvenile Law Section of the Washington State Bar Association will provide a forum to discuss issues of concern and act as an agent of change to improve the law and practice related to civil and criminal matters involving children and youth in Washington. This section will welcome advocates from all interested disciplines and a variety of fields of law, including juvenile justice, child welfare and those who represent youth in civil legal practice. The following is an overview of the major areas of legal practice contemplated by the “Juvenile Law Section.” Child Welfare In Washington, child-welfare law is generally known as “dependency law.” “Dependent” children are defined under RCW 13.34 as individuals under the age of 18 who are abused, neglected, abandoned, or without a capable parent, guardian, or custodian, which puts them in danger of substantial physical or psychological damage.2 Children and youth generally enter the dependency system through Child Protective Services (CPS), a division of the Department of Social and Health Services (DSHS). CPS caseworkers respond to referrals of child abuse and neglect made by members of the public. These referrals may come from legally mandated reporters, such as teachers or doctors, or from anyone who witnesses suspected child abuse or neglect. 3 In 2003, less than half of the approximately 79,000 referrals made to CPS were accepted for investigation.4 Of those, only a small percentage of those referrals resulted in CPS filing a dependency petition in juvenile court.5 Once DSHS (or any other person) files a petition alleging that a child is dependent, a hearing must be held in juvenile court within 72 hours. Parents have a right to counsel at all dependency hearings. These hearings are open to the public. By statute, children in dependency proceedings must be represented by a guardian ad litem (GAL), court appointed special advocate (CASA) or an attorney unless the court finds good cause not to appoint a representative. Children 12 years and older have the right to request appointment of an attorney at public expense. Counties in Washington vary widely with respect to how children are represented in dependency proceedings. If a child is found dependent by a juvenile court judge and placed outside of his or her home, the juvenile court will order that services be provided to the parents to correct their parenting deficiencies, and will review the matter at least every six months. Dependency proceedings are eventually resolved either through return of the child to the parents or through another permanent plan, such as termination of parental rights and adoption, relative guardianship, or a third-party custody order. Some dependent children “age out” of the system because they turn 18 and no longer meet the statutory definition of dependent child. Lawyers working in the dependency arena, whether representing children, DSHS social workers, CASAs, or parents, work in a specialized area of law. In addition to mastering state and federal laws regarding child welfare, they must also understand interdisciplinary topics such as the underpinnings of child abuse and neglect, child and adolescent development, principles of permanency planning, and effective family-reunification services. They will at times need knowledge of other areas of law, such as school law, criminal law, and family law. One of the goals of the Juvenile Law Section will be to provide a forum for equipping advocates in the broad array of issues affecting children in the dependency system. Juvenile Justice The “Juvenile-Justice System” generally refers to the juvenile offender (criminal) system. In Washington, most crimes alleged to have been committed by youth under 18 are handled in juvenile court, a division of Superior Court. Certain serious offenses (like murder and robbery in the first degree) alleged to have been committed by 16- and 17-year-olds are filed directly as adult criminal offenses in Superior Court. District Courts may also handle juvenile criminal traffic offenses in Washington. Historically, the juvenile-justice system lacked many of the due-process protections afforded adults in the criminal-justice system. This changed dramatically in 1967 under the U.S. Supreme Court’s landmark decision In re Gault,6 which gave juveniles many, but not all, of the procedural rights adult defendants possessed. Today, a juvenile court trial in Washington, known as a “fact-finding,” resembles an adult criminal trial except there is no jury. Juveniles, like adults, are sentenced pursuant to a standard-range sentencing grid which takes into account the offense and the individual’s criminal history. Juvenile criminal proceedings are open to the public, and juvenile criminal-history records are accessible to the public just like adult criminal-history records. Juvenile criminal history remains on a person’s record even after the person becomes an adult unless the person is eligible to seal the record and takes affirmative steps to do so. Although the procedural differences between juvenile court and adult court have diminished in the last few decades, some remain. Children eight to 12 years old may be charged in juvenile court but only after the State rebuts the statutory presumption that the child lacks capacity to commit the crime. Juveniles may also face either mandatory or discretionary “decline” proceedings, where the juvenile court may decide to decline jurisdiction and allow the juvenile to be tried as an adult. The time to trial is shorter in juvenile court than in adult court, as are periods of incarceration imposed at sentencing. Youth charged in juvenile court have a constitutional right to counsel. Parents’ incomes can be taken into account to determine whether juveniles are eligible for counsel at public expense. Public defense systems for juveniles vary across the state. Some counties have public-defense agencies which provide juvenile-defense services, while other counties rely on contracts with private firms or assigned-counsel panels. The 2003 Washington Assessment of Quality of Counsel for Juveniles in Offender Matters found that while there are many “committed talented people who work hard to protect the rights of children” across Washington state, often children’s “representation did not meet accepted standards.”7 The report recommended, among other things, that the WSBA create a standing committee to address juvenile-justice issues. The Juvenile Law Section creates an opportunity for further discussion and implementation of the recommendations of this significant WSBA-sponsored report. Unlike a bar committee, a bar section allows for broader participation and may include nonlawyer professionals who work with juveniles or on juvenile-justice issues. The Juvenile Law Section will be inclusive of defenders, prosecutors, judges, and service providers to allow for cross-system training and collaboration, which can lead to improved outcomes for young people and the community. Status Offenses: Truancy, At-Risk Youth, and Child in Need of Services “Status offenses” are behaviors which are offensive based on a person’s status as a minor, such as running away from home and truancy. In Washington, these types of offenses are sometimes referred to as “Becca proceedings” after the 1995 bill which revamped the status offender laws. There are three main types of Becca proceedings: At-Risk Youth (ARY), Child in Need of Services (CHINS), and Truancy. An ARY petition is filed by a parent or guardian to obtain juvenile-court jurisdiction over children living at home who are “beyond parental control” and have been engaging in behaviors such as running away.8 If a child is found to be “at-risk,” the juvenile court may impose conditions like “obeying house rules” and abstaining from drugs and alcohol. The court can then use its contempt powers to enforce its order if an at-risk youth violates the court-imposed conditions. Generally, the court can impose up to seven days in detention for violating an ARY order. Children have a statutory right to counsel when an ARY petition is filed against them. A CHINS proceeding replaces what was formerly known as an “Alternative Residential Placement” proceeding. A CHINS petition is filed in juvenile court by either a child or a parent to request an out-of-home placement due to conflict in the home. In CHINS proceedings, both the child and the parents have a statutory right to counsel. The state is not a party to CHINS proceedings but may get involved if the child is placed outside the home in licensed foster care. Truancy filings outpace all other noncriminal filings in juvenile court. Truancy petitions are filed by school districts in juvenile court when a child misses a certain number of days from school. Children who are the subject of these proceedings do not receive appointed counsel unless contempt proceedings are initiated, thereby subjecting them to the threat of detention. Becca proceedings can involve issues spanning child welfare, juvenile justice, and school and mental-health law. Lawyers who practice in this area must have knowledge of all of these areas of law in addition to knowledge regarding interdisciplinary topics such as adolescent development and adolescent mental health. The Civil Legal Needs of Youth Children and youth have a variety of other civil legal issues relating to school, healthcare, housing, poverty, and discrimination. Lawyers representing these children and youth tackle issues in special education, school discipline, access to mental health and medical care, eligibility for financial assistance and other community support, immigration, housing, and employment. These needs are more pronounced for children and youth who are involved in other juvenile-court proceedings. The mental-health needs of youth in the child-welfare and juvenile-justice systems cannot be overstated. The Juvenile Rehabilitation Administration reported that 68 percent of the youth detained in its secure facilities in 2004 had a mental-health disorder. A recent study of foster-care alumni found that more than half of the youth interviewed who had been in foster care had mental-health disorders, and a quarter experienced post-traumatic stress disorder.9 Educational needs of this population are also considerable. A 2001 study of Washington foster youth showed significantly lower graduation rates and test scores.10 The underlying causes of juvenile offending behavior can often be addressed through legal advocacy in other arenas. Addressing the civil legal needs of juvenile offenders has been shown to decrease recidivism.11 Bringing together lawyers and advocates who understand the different legal and social issues affecting children and youth in multiple systems is one of the most important goals of the new WSBA Juvenile Law Section. A Better Future Children and youth, like Jessica, frequently end up in multiple legal systems with complex and intertwined legal needs. By creating opportunities for education and collaboration, the Juvenile Law Section will strive to make better lawyers and a better legal system for the Jessicas and other young people who are our future. For more information about the Juvenile Law Section, contact Kim Ambrose at kambrose@u.washington.edu or Anne Lee at anne.lee@teamchild.org.
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