April 1999

The Becca Bill: Is the Cure Worse than the Disease?

By Catherine Chaney & Anne Kysar

Becca Hedman's tragic story provided the political impetus to pass sweeping legislation that gives the juvenile court the power to jail children who have not been convicted of a crime.¹ Becca was subject to abuse at the hands of her biological parents and her adoptive brother. She suffered from addiction and even lived on the streets after running away from home. When Becca was only 13 she was murdered by a man who had paid her for sex.² The state legislature responded to this tragedy by enacting the "Becca Bill" in July 1995.³ The intent of the bill was to "empower parents" by giving them power to deal with their runaway, disobedient children or truant children by having them locked up in juvenile detention.⁴ The bill provides juvenile court judges and commissioners with the power to jail "At-Risk Youth," "Children in Need of Services," and truant children for "civil contempt" if they violate a court order.⁵ An examination of the bill and its implementation show that the cure provided by the "Becca Bill" may not adequately address the problems that these children face. Indeed, in some instances the solution created by the "Becca Bill" may exacerbate these problems.

The Petition

The statute allows a parent to petition juvenile court to have his or her child declared an "At-Risk Youth" (ARY) or a "Child in Need of Services" (CHINS). Another part of the Becca Bill authorizes a school district to petition juvenile court to have a student declared a truant. Because these proceedings are ostensibly civil, children are not afforded the due process protections that apply in criminal proceedings.

A court must grant an "At-Risk Youth" petition if the allegations in the petition are established by a preponderance of the evidence.⁶ The legislature defined an "at-risk youth" as a runaway, a child who is beyond parental control, or a child who has a substance abuse problem.⁷ In practice, courts rarely deny ARY petitions (or CHINS or truancy petitions, for that matter). For example, if a child is engaging in behaviors such as staying out after curfew or spending time with friends the parent disapproves of or consuming alcohol without parental permission, a court may grant an ARY petition on the basis that the child is "beyond parental control." Before an ARY petition is granted, the law requires that parents attempt some alternative to court intervention or show "good cause why such alternatives have not been attempted."⁸ In practice, courts construe this requirement loosely: a counseling appointment will generally satisfy the requirement.

The legislature defined a "child in need of services" as a child who is beyond parental control or a runaway and is in need of services.⁹ When a CHINS petition is granted, the child may be placed outside of the home by the Department of Social and Family Services. While a child or a parent can file this petition, the court may not grant a child's request to be placed out of the home unless the child proves by "clear, cogent, and convincing evidence" that placement outside the home is in the best interests of the family and the child, that the child has tried to resolve the problem, and that the parents are unavailable or the parent's actions cause an imminent threat to the child.¹⁰ Again, in practice, a parent's petition to have his or her child declared a CHINS is rarely denied while a child's petition is more likely to be denied.

A "truant child" is defined as a child who has had unexcused absences in a school year. Additionally, the statute requires that the school take steps to reduce or eliminate the child's absences from school.¹¹ The school district or the parent may bring a truancy petition. A child appears at a truancy fact-finding hearing without the benefit of counsel under the statute. As a result, the school district is rarely tested on its statutory obligation of taking steps to reduce or eliminate a child's absences from school. In most cases, the school district reports that it cannot carry out this task because the student does not attend school regularly, or the school submits that they have carried out this statutory requirement by scheduling a conference with the child and his or her parent.

In one case, a juvenile court commissioner found a 12-year-old girl truant even though the girl and her family are homeless and live in the family car. The child had difficulty sleeping and had trouble getting up for school in the morning. The court found that the school had met its statutory burden to take steps to reduce or eliminate this child's absences by scheduling a meeting with her at school registration.

The Court's Disposition Order

Once a court grants an "At-Risk Youth" or CHINS petition, the court assumes broad authority in writing "conditions of supervision" for the child. The statute authorizes a court to order a child to attend school, counseling, substance abuse treatment or "any other condition the court deems an appropriate condition of supervision."¹² In practice, the "conditions of supervision" are long lists of rules for the child to follow. The orders "often end up being extensive lists of what the parents want from the child …. The focus is more on ordering the child to follow the rules than on providing services to remedy the problem."¹³ The court typically orders that a child do the following: attend school regularly with no unexcused absences, tardies or behavior problems; obtain a drug and alcohol evaluation and follow treatment recommendations; obtain a mental health evaluation; submit to random urinalysis; neither use nor possess non-prescribed drugs or alcohol; obey a curfew; enroll in and attend individual and family counseling; reside with parents or in another court-approved placement; have no contact with people the parent disapproves of; refrain from physical or verbal abuse; and refrain from the use of profanity. In some instances the court literally micromanages the child's day. In one case, the commissioner ordered a child to be in his room and in bed by 9 p.m. or risk incarceration.

The statute provides that the court "may order the parent to participate in counseling services or any other services for the child requiring parental participation."¹⁴ Parents are rarely ordered to do more than attend family counseling (and sometimes the court does not require this), enroll the child in school, and refrain from physically or verbally abusing the child. Perhaps because the statute requires the parents to pay for services,¹⁵ the court is usually reluctant to order the parent to attend parenting classes. Thus a commissioner refused to order a father to attend anger management classes even though he admitted to getting so angry at his child that he knew he frightened the child and he had indicated his willingness to attend the classes.

In truancy proceedings, the court may order a child to attend school or drug and alcohol treatment.¹⁶ While the statute provides that the court may punish a child or parent who fails to comply with the court order (evidence of which the school district must present),¹⁷ the statute does not give the court authority to order the school to provide services to the child. Instead, the statute authorizes the court to order the child to attend the same or a different school, or alternative school program.¹⁸ Thus, if a school has suspended a child, the court can order the child to attend school but cannot order the school to reinstate the child.

Some ARY, CHINS and truant children receive no services even when they are court-ordered to participate in them, as the statute does not entitle children or parents to any services.¹⁹ While the court may order psychological assessments, drug and alcohol treatment or other services, the court cannot provide these services to a child. Thus, the child is dependent on the parent to pay for and arrange services. If a parent is indigent or unable to access services, the child may not receive the help he or she needs. If resources are available, the state may provide a family with up to 15 free hours of Family Reconciliation Services counseling. This is a very valuable resource according to many families, and is sometimes effective in helping families work through problems.

Contempt Provisions

If a child violates a court order, the court can jail the child for contempt. In truancies, as well as ARYs and CHINS, the court may jail the child for up to seven days for failing to follow the court order.²⁰ Neither RCW 13.32A.250(1) nor RCW 28A.225.090(2) provides for the standard of proof, but both simply use the language "failure to comply with court order." The statute does not explicitly provide that the school should bring the contempt motion, but the practice is that the school does so. In ARY and CHINS cases, the statute provides that "a parent, a child" (among other parties)²¹ may bring a motion for contempt for failure to comply with the terms of the court order.²²

Although the language of the statute clearly limits the incarceration of a child to seven days, it is the practice of some juvenile court commissioners to jail children "indefinitely" until the child "convinces the court" that he or she will comply with the court order. Because the "conditions of supervision" are broad and often include extensive rules for a child to follow, a child may be jailed frequently and for minor infractions.²³ For example, children have been jailed for swearing at their parents or being late for curfew.

Although the statute authorizes the court to hold a parent in contempt for failure to follow the court order, parents are rarely held in contempt.²⁴ Children often are reluctant to ask that their parent be held in contempt or even to provide negative information to the court about their parents. The ARY and CHINS proceedings have been established to "empower parents." As a result, the process disempowers children, sometimes even providing a means for their further victimization. A child who knows that his or her parent may jail him or her for violation of a rule is especially reluctant to disclose information of abuse because the child fears retribution from the parent. For example, a child who was jailed for running away from home in an ARY matter confided in her attorney that her parent was physically abusive — beating both her and her mother. This child refused, however, to allow her attorney to provide the court with this information or to file a contempt motion because she was distrustful of a court that had previously jailed her for running away from home.

In a truancy case, only after a child was jailed for failing to comply with the order to attend school did she reveal to her attorney that her mother was battered by the mother's boyfriend. The boyfriend, who apparently had beaten the mother so severely that her eyes were swollen shut for a week, had attended the school truancy conference at which school personnel wondered why the child was reportedly staying out so late at night that she could not wake up in time to take the hour-long bus ride across town to get to school. This child naturally enough felt unable to tell anyone at the conference that she was not comfortable staying home because of her mother's live-in abusive boyfriend.

Although the statute states that children and parents should be treated equally for the purposes of contempt, parents are rarely held in contempt. In the rare instance that a parent is held in contempt, the parent is asked to pay a small fine. In the authors' experience, the court has never jailed the parent for contempt in one of these cases.

Problems Children Face

Although some children who are subject to ARY, CHINS and truancy orders may simply be engaging in expected and obnoxious teenage behaviors because they are struggling to find their identity as individuals, other children in this group are in need of help because of inadequate parenting and unhealthy family dynamics.²⁵ Many of the children who are in dire need of help have been sexually and/or physically abused. Indeed, "young people who are in the juvenile justice system, in runaway or homeless shelters, or in foster care all report having experienced extremely high rates of sexual or physical abuse during their childhood years."²⁶ Children who run away from home are often trying to escape this abuse.²⁷ 

A survey reported in 1994 by Seattle's Coalition for Kids and Families (now Youthcare) showed that 35 percent of runaways in King County reported that they ran from physical abuse and would return home if the abuse stopped. Twenty-six percent of the children in the survey reported that their parents had kicked them out. Twenty-five percent reported sexual abuse either by a parent or by someone else. According to Dr. Robert Dysher, former director of Adolescent Medicine at the University of Washington, "I've been working with street kids for 30 years, and I have seen very, very few of these kids who come from really good homes with care and affection run away… the[se] are homes and kids who've grown up in situations which most of us would feel were absolutely intolerable."²⁸ 

In addition to abuse, inadequate parenting is the cause of many problems that affect these youth. The ARY or CHINS cases in which parents allege that their children are "[beyond parental control] often reflect unreasonable rules and demands made by parents who themselves need counseling more than the youngsters…[and] [e]ven more reflect inadequate skills in parenting."²⁹ Indeed, studies indicate that youth who are engaged in risky behaviors such as skipping school, substance abuse, or other acting-out behaviors often have parents who lack nurturance, attention, supervision, understanding and caring.³⁰

In one case, a young girl who is the subject of an ARY petition returned to her mother's home one year ago after spending most of her life in foster care. This child's mother is a recovering alcoholic who abused and neglected the child for most of her life. The child suffers from the effects of fetal alcohol syndrome as a result of her mother's drinking. The mother continues to abuse the child by calling her names, hitting her and kicking her. The child now is faced with incarceration for running away from home.

The problems of parental abuse and inadequate parenting also affect truant children in some instances. Additionally, many of these children do not attend school because school is not meeting their needs. "Few youths are habitually truant just for the fun of it…[t]hey are truant because they can no longer endure the frustration, the criticism, the humiliation of sitting day after day in classes where they can't possibly succeed, can't understand what is being discussed and probably can't even read the assignment."³¹ 

Incarceration Increases Children's Problems

The problems of ARY, CHINS and truant children are often exacerbated by incarceration. "The child who repeatedly runs away from an unhappy home situation, though having committed no offense, is all too easily sent to jail by a frustrated judge who has no other resources at hand…the very policies meant for the protection of these children sometimes hurt these children."³²

First, ARY, CHINS and truant children are jailed alongside children who have committed offenses (the equivalent of crimes in the adult world) or who are awaiting trial for alleged offenses. Most runaways and truant children do not commit crimes.³³ While some parents and school officials think that the experience of jailing their children with criminal children will "scare them straight," incarceration often exacerbates the problems children face rather than alleviates them.³⁴ ARY, CHINS and truant children who are incarcerated form relationships with offender youth and sometimes learn patterns of criminal behavior while in jail.³⁵ For example, one 13-year-old girl who was jailed for running away from home met her boyfriend in detention, a 16-year-old boy who was awaiting trial for a felony charge.³⁶

Second, while incarcerated, ARY, CHINS and truant children may not have access to education. When ARY, CHINS and truant children in King County are jailed, they first go into an intake unit and are not sent to classes. Children frequently miss one or two days of school when they are incarcerated. Even if these children eventually leave the intake unit and receive access to education during their incarceration, their special-education needs are usually not met. Generally, a child's special-education records are not received by detention staff before they are released.

Third, incarceration is often stigmatizing and negatively affects a child's view of him- or herself. "[B]eing treated like a prisoner reinforces a child's negative self-image. Even after release, a juvenile may be labeled as a criminal in his [or her] community as a result of his [or her] jailing, a stigma which can continue for a long period."³⁷ For a child who has already suffered from abuse, this stigmatization can be especially debilitating.

Solutions

The "Becca Bill" has not accomplished the goals that it set out to achieve. In our experience, giving parents the ability to jail their children sometimes increases family disharmony and problems for children. As a result, our community should develop workable solutions to meet the needs of these children and their families.

First, children and families should be entitled to receive services to address the problems that the family faces. If families cannot afford these services, the state should provide these services without financial barriers. When a good, safe home is not available, children should be provided with a long-term placement that meets their needs. The Hope Act, currently in the state legislature, would provide children with many of these needed services. Jim Theofelis, an advocate for homeless youth who helped draft the bill, says the Hope Act could be the "service provision to the Becca Bill."³⁸ It would help prevent children from going to the streets by providing them with the services they need to stay at home, such as social workers to intervene early once children run away. If children do not have a safe home, however, the Act helps children plan for their future by creating long-term housing. To stay in the housing, teens must work with a counselor to develop life skills such as money management, employment and health care.³⁹ According to Theofelis, "The Hope Act strives to tell each of these young people… that no matter how angry, scared and isolated they may feel, there is an opportunity for health, healing and self-responsibility."⁴⁰

Second, the incarceration of ARY, CHINS and truant children for contempt should be ended.⁴¹ Jail should not be used as a form of behavior modification. Instead, services which address the cause of a child's behavior should be provided to children and families. If courts continue to jail ARY, CHINS and truant children, these children should never be jailed with offender youth. Instead, these children should have access to safe, supportive environments, such as independent living programs, where they can receive the help they need.

Finally, the focus should be on early prevention of abuse and neglect. Early violence prevention programs, prenatal care and health care are necessary to create healthy, well-adjusted teenagers. The more than 16 million dollars used to subject children to the court system would be better spent on preventative programs which protect children from abuse and provide parents with skills to raise healthy children.⁴²

Catherine Chaney, J.D., George Washington University, National Law Center, 1991, is in private practice in Seattle. She was employed at the Seattle–King County Public Defender Association in Seattle almost seven years, during which she represented children in ARY, CHINS and truancy matters for nine months.

Anne Kysar, J.D., New York University School of Law, 1997, is a Soros Justice Fellow at the Public Defender Association. As part of Ms. Kysar's fellowship, she represents children in ARY, CHINS and truancy matters. The views expressed in this article do not necessarily represent the views of the Seattle-King County Public Defender Office.

Notes

¹ See Dateline: Profile: Born to Run; Parents in Washington Seek Law to Keep Children From Running Away (NBC television broadcast, June 23, 1995).