REPRESENTING CROSSOVER YOUTH

Pacific Juvenile Defender Center RoundtableSeptember 19, 2015

Presenters: Roger Chan, Executive Director

Jaime Michel, PhD, Clinical DirectorEast Bay Children’s Law Offices

Oakland, CA

WHAT MAKES CROSSOVER YOUTH DIFFERENT?

Multiple studies demonstrate that childhood maltreatment: increases the likelihood of juvenile and adult

arrest; Increases the likelihood of arrest for a violent

offense; Increases the likelihood of recidivism.

WHAT MAKES CROSSOVER YOUTH DIFFERENT?

Other findings: Both abuse and neglect show direct link to

delinquency; Child maltreatment doesn’t determine

delinquency Children of color are overrepresented at

similar or greater rates in the crossover youth population;

Girls are in larger proportion within the crossover youth population.

WHAT MAKES CROSSOVER YOUTH DIFFERENT?

Experiences of Foster Care Congregate care; Disruptions in home life; Disruptions in school

Reframing Crossover Youth

Trauma-informed Approach Reframe problem behaviors; Need for interventions to address

traumatic stress; Cautions against re-traumatization;

Reframing Crossover Youth

Resilience – Protective Factors Capacity to overcome adversity Protective Factors

Developmental Approach When is a teenager just being a teenager… Normative responses in non-normative

environments.

Trauma-Informed Approach

Understanding behavior through the lens of trauma.

Youth who experience complex trauma by those who are meant to protect them derails a child’s development by causing them to lose trust in adults. Distrust of adults creates a greater risk of delinquency.

Imposing only negative or punitive consequences will likely do little to change the youth’s patterns of rule breaking and risky behaviors because the response does not address the impact of traumatic stress.

Quick Overview

WIC 241.1 applies whenever “it appears that a minor comes within the description of both Section 300 and Section 602.”

241.1 protocols are local and developed by the probation and child welfare departments.

Youth cannot be simultaneously a 300 dependent and 602 ward unless the county has chose a dual status protocol (“on hold” or “lead agency”

Joint Assessment report is required.

Dual Status

“On Hold”: Dependency jurisdiction is suspended while the child is a ward. When 602 completed and reunification detrimental, joint assessment re: resuming dependency jurisdiction.

“Lead Agency”: county protocol identifies which agency/court will be responsible for case management, court hearings, and submitting court reports.

What if my county is not dual status? Does it matter?

AB 212 added WIC 607.2, allowing the delinquency court to “vacate the order terminating jurisdiction over the minor as a dependent of the court, resume jurisdiction pursuant to Section 300 based on the prior petition and terminate [delinquency] jurisdiction” if the minor was subject to a foster care placement as a 300 at the time the minor was declared a 602 ward.

GETTING YOUR 300 CLIENT OUT

On average, 300’s spend more time in juvenile hall than a non-300 youth.

WIC 602 TIMELINES

If Detained:48 hours (court days) to file petition24 hours (court days) after filing for detention hearing

Jurisdictional Trial:15 court days (detained)30 calendar days (not detained)

Disposition: (WIC 702) 10 court days (if detained)30 calendar days “after date of filing of the petition” (if not detained)

Child cannot be detained solely for lack of a suitable placement. WIC 635(b)(2)

If a minor is a dependent of the court pursuant to Section 300, the court’s decision to detain shall not be based on the minor’s status as a dependent of the court or the child welfare services department’s inability to provide a placement for the minor. WIC 635(b)(2), 636(a)

Likely to flee to avoid the jurisdiction of the court?

Getting your 300 client out, cont.

Protection of the minor? 636(e) For a minor who is a dependent of the court

pursuant to Section 300, the court’s decision to detain the minor shall not be based on a finding that continuance in the minor’s current placement is contrary to the minor’s welfare. If the court determines that continuance in the minor’s current placement is contrary to the minor’s welfare, the court shall order the child welfare services department to place the minor in another licensed or approved placement.

635(c)(2) If the court orders release of a minor who is a dependent of the court pursuant to Section 300, the court shall order the child welfare services department either to ensure that the minor’s current foster parent or other caregiver takes physical custody of the minor or to take physical custody of the minor and place the minor in a licensed or approved placement.

Practical Considerations If the 300 is detained

Who can visit? Is there a JV-220 Authorizing psychotropic

medications? – Does the juvenile hall know about the child’s medications?

If the 300 is detained:Educational Rights & IEP’s

Is the juvenile hall school trying to change my client’s IEP? Juvenile court schools are operated by the

county board of education. When a student “transfers” to a new district,

the new district must make a new IEP or adopt the old IEP within 30 days. (Educ. Code 56325)

Who holds educational rights?

What about the “Difficult to Place” Kids?

Frequent runners Needs a Level 14 placement: must be

approved by an “interagency placement committee” after determining that the child is “SED”

Needs an IEP – group home cannot require an NPS as a condition of placement, but is also not required to accept a youth.

Working with Dependency Counsel

Dependency attorneys have certain statutory “best interest” responsibilities: “A primary responsibility of [child’s counsel] shall

be to advocate for the protection, safety, and physical and emotional well-being of the child” WIC 317(c)

Counsel shall not advocate for the return of the child if, to the best of his or her knowledge, return of the child conflicts with the protection and safety of the child.” WIC 317(e)(2)

CAPTA GAL: Make recommendations to the court concerning the child’s best interest

Dependency attorneys may also have a role in obtaining necessary releases of information. WIC 369

Information Sharing

Who can authorize ROI for confidential MH information? Not the parent if child was removed. H&S 123116.

Who can authorize ROI for school records?

How much to share? What does 827 allow? (access vs. use)

Attorneys for parties actively participating in juvenile proceedings

Dissemination by receiving agency only to those persons authorized under 827.

AB 388What if my client was arrested for a group

home incident?

It is the intent of the Legislature to reduce the frequency of law enforcement involvement and delinquency petitions arising from incidents at group homes and other facilities licensed to provide residential care to dependent children.

Applies to group homes, transitional housing placement providers, community treatment facilities, or runaway and homeless youth shelters

AB 388What if my client was arrested for a group home

incident?

Does your county 241.1 protocol require a manifestation determination?

241.1(b)

(3) (A) These protocols may also require immediate notification of the child welfare services department and the minor’s dependency attorney upon referral of a dependent minor to probation, procedures for release to, and placement by, the child welfare services department pending resolution of the determination pursuant to this section, timelines for dependents in secure custody to ensure timely resolution of the determination pursuant to this section for detained dependents,

and nondiscrimination provisions to ensure that dependents are provided with any option that would otherwise be available to a nondependent minor.

(B) If the alleged conduct that appears to bring a dependent minor within the description of Section 601 or 602 occurs in, or under the supervision of, a foster home, group home, or other licensed facility that provides residential care for minors, the county probation department and the child

welfare services department may consider whether the alleged conduct was within the scope of behaviors to be managed or treated by the foster home or facility, as identified in the minor’s case plan, needs and services plan, placement agreement, facility plan of operation, or facility emergency intervention plan, in determining which status will serve the best interests of the minor and the protection of society pursuant to subdivision (a).

AB 388What if my client is arrested for a group home

incident?

Restitution fines are waived for all youth described by section 241.1 and victim restitution is limited to out-of-pocket if the victim was a group home or group home staff and insurance covered the damages.

WIC 730.6(g)(2) If the minor is a person described in subdivision (a) of Section 241.1, the court shall waive imposition of the restitution fine required by subparagraph (A) of paragraph (2) of subdivision (a).

WIC 730.6(k): If the direct victim is a group home or other facility licensed to provide residential care in which the minor was placed as a dependent or ward of the court, or an employee thereof, restitution shall be limited to out-of-pocket expenses that are not covered by insurance and that are paid by the facility or employee.

HOW DO I KEEP MY CLIENT A 300?

Citation Hearings Pre-Jurisdiction Informal Supervision (WIC 654 and 654.2) Competence (WIC 709) – maturity, mental illness, developmental disability. Deferred Entry of Judgment (WIC 790) Probation without Wardship (WIC 725(a))

Informal Supervision (Diversion)Welf. & Inst. Code 654.2

6-12 months of informal supervision Petition is suspended and dismissed upon

successful completion Still liable for victim restitution Ineligible:

707(b) serious felonies or any felony if minor is 14 or over

Drug sales or possession Gang allegations Restitution over $1000

Competence (WIC 709)

A minor is incompetent to proceed if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding of the nature of the charges or proceedings against him or her.

May be due to mental disorder, developmental disability, or developmental immaturity.

Deferred Entry of Judgment (WIC 790)

Minor must admit all charges. Violation at discretion of DA, court or PO Benefit of satisfactory completion is

dismissal and expungement

Probation Without Wardship (WIC 725(a))

Dispositional option 6 months of supervision - Can it be

extended? (Lino B. (2006) 138 Cal.App.4th 1474: minor can knowingly and willingly accept a probation period exceeding six months).

Court’s discretion to fashion probation conditions of a nonward is not limitless. No “incarceration-like time (e.g. juvenile hall). In re Walter P. 92009) 170 Cal.App.4th 95; In re Trevor W. (2001) 88 Cal.App.4th 833

Probation ConditionsWhat impact on the foster placement?

Curfew Community Service Location of probation programs Home Supervision / Electronic

Monitoring / GPS Can a minor be on GPS while on nonwardship

725(a) probation? (Walter P. (2009) 170 Cal.App.4th 95: 725 and 729.2 serve as a floor, not a ceiling for probation conditions)

Challenging probation conditions

Probation conditions must be “reasonably related to a proper rehabilitative purpose.”

A condition is not valid if it:1. Has no relationship to the crime of which the

offender was convicted;2. Relates to conduct which is not in itself

criminal; and3. Requires or forbids conduct which is not

reasonably related to future criminality.(In re Daniel R. (2006) 144 Cal.App.4th 1)

What if my client is made a 602?

“Least Restrictive Environment” Maximum Confinement Time Wardship Probation Out of Home Placement, including

relatives and NREFM’s Camp/Ranch –impact on AB 12 eligibility? California Division of Juvenile Justice (DJJ)

How does 602 status harm a foster child?Collateral Consequences

Stigma Financial Benefits Family Reunification Placement

AB 2607What if my client is made a 602 and sent to

placement?

Placement efforts to be reviewed at a court hearing every 15 calendar days. WIC 737.

Probation must identify a specific placement for the minor in the case plan submitted with the disposition report and release the minor at the 602 disposition hearing, or show reasonable efforts to find a placement. WIC 727(a)(4); 737(c)(2)

AB 2607 If a former 300 who was in foster care at the

time the 602 petition was filed, a delay in placement is not reasonable if the PO does not identify a specific and available placement in the case plan AT THE DISPOSITION HEARING.

PO must provide documentation of reasonable efforts.

If the delay is unreasonable, the court shall order assessment of temporary nonsecure placement or other alternatives to detention, as well as other sanctions.

AB 12 and 602 wards: 3 paths to eligibility

602 wards continue under probation supervision and placement order after age 18 (Maybe SB 12? – under placement order at time the 602 petition is filed)

“Transition Jurisdiction” WIC § 450 if under a placement order on 18th birthday and rehabilitative goals have been met.

Eligible youth under 17.5 years old may have 300 jurisdiction resumed, or assume 300 dependency status if at risk (via 329).

Eligibility for Transition Jurisdiction

Delinquent youth whose rehabilitative goals have been met; AND

Are between ages 18-21 AND had a foster care placement order on the day they attain 18 years old; OR

Are between 17.5 to 18 AND are not receiving reunification services; do not have a permanent plan of adoption or guardianship; and return home is a substantial risk; AND

Are former dependents who had a foster care placement order in the dependency court at the time the delinquency court assumed jurisdiction OR have a current order for foster care placement in the delinquency court.

What if the client is a 300 from a different county?

CRC 5.512(c)

Joint assessment by responsible agencies in each county

Report to be prepared and filed in county where 2nd petition is filed

County with first jurisdiction must receive notice!

Nuts & Bolts of the 241.1 Hearing

No due process right to a full evidentiary hearing on a 241.1 determination. In re Henry S. (2006) 1409 Cal.App.4th 248

“All parties and their attorneys must have an opportunity to be heard at the hearing.” CRC 5.512(g)

241.1 Report is required

The Court may not determine which status is appropriate without receiving and considering the 241.1 Assessment.LA County DCFS v. Superior Court (2001) 87 Cal.App.4th 320In re Marcus G. (1999) 73 Cal.App.4th 1008

Challenging the 241.1 ReportCRC 5.512

1. A description of the nature of the referral2. The age of the child3. The history any physical, sexual or

emotional abuse of the child4. The prior record of the child’s parents for

abuse of this or any other child5. The prior record of the child for out-of-

control or delinquent behavior

Elements, continued

6. The parents’ cooperation with the child’s school7. The child’s functioning at school8. The nature of the child’s home environment9. The history of involvement of any agencies or

professionals with the child and his or her family10. Any services or community agencies that are

available to assist the child and his or her family11. A statement by any counsel currently

representing the child12. A statement by any CASA volunteer currently

appointed for the child.

USING STATEMENT OF MINOR’S COUNSEL:

Arguing Mitigating Factors (CRC 4.423)(a) Factors relating to the crime(1)The defendant was a passive participant or played a minor role in the crime;(2)The victim was an initiator of, willing participant in, or aggressor or provoker of

the incident;(3)The crime was committed because of an unusual circumstance, such as great

provocation, that is unlikely to recur;(4)The defendant participated in the crime under circumstances of coercion or

duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;

(5)The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;

(6)The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;

(7)The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;

(8)The defendant was motivated by a desire to provide necessities for his or her family or self; and

(9)The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.

USING STATEMENT OF MINOR’S COUNSEL:

Arguing Mitigating Factors (CRC 4.423)(b) Factors relating to the defendantFactors relating to the defendant include that:(1)The defendant has no prior record, or has an insignificant

record of criminal conduct, considering the recency and frequency of prior crimes;

(2)The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;

(3)The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;

(4)The defendant is ineligible for probation and but for that ineligibility would have been granted probation;

(5)The defendant made restitution to the victim; and(6)The defendant's prior performance on probation or parole

was satisfactory.

Timing of Assessment ReportCRC 5.512

“The assessment must be completed as soon as possible after the child comes to the attention of either department” CRC 5.512(a)(1)

Determination of status must be made before any petition is filed whenever possible, but the report need not be prepared before the petition is filed. CRC 5.512(a)(2) and (3) [compare to Marcus G. (1999) 73 Cal.App.4th 1008: joint recommendation to be submitted “with the petition that is filed”]

Timing of Assessment ReportCRC 5.512

If detained, the 241.1 hearing must be as soon as possible after or concurrent with the detention hearing, but no later than 15 court days after the order of detention and before the jurisdictional hearing. CRC 5.512(e)

If not detained, the hearing must occur before the jurisdictional hearing and within 30 days of the date of the petition.

Jurisdiction or Disposition Issue?

In re M.V. (2014) 225 Cal.App.4th 1495: “We note that at least one commentator has indicated that the timeframes set forth in Rule 5.512(e) may be contrary to the best interests of the minor and the protection of society and therefore void as inconsistent with the intent of section 241.1. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2013) § 3.27[2], p. 3–52 … This is because a decision to terminate one status should not be made until after a determination that the jurisdictional allegations supporting the alternate status are true. (Id. at p. 3–51.) As is pertinent to the present matter, “[s]ince the full nature of the delinquency allegations may not become clear until after they have been litigated and the juvenile court may or may not find those allegations true,” there may be “substantial merit” to deferring the 241.1 determination until after the jurisdiction hearing in the appropriate case. (Id. at pp. 3–51-3–52.)

Which Court makes the 241.1 decision?

“… The assessment of which status would be appropriate for the minor is to accompany the petition that creates the potential for dual jurisdiction. Likewise, the determination of the appropriate status is to be made by the juvenile court that is acting on the second petition.” Marcus G. (1999) 73 Cal.App.4th 1008. See also LA DCFS v. Superior Court (2001) 87 Cal.App.4th 320

But, there must be at least 5 calendar days notice and copies of the report

provided to the other court.

Resources

RFK National Resource Center for Juvenile Justice: http://www.rfknrcjj.org

Georgetown Center for Juvenile Justice Reform: http://cjjr.georgetown.edu/

Sierra Health Foundation Positive Youth Justice Initiative (including Trauma-informed Care) http://www.sierrahealth.org/pyji

THANK YOU!

East Bay Children’s Law OfficesOakland, CA

Roger Chan, Executive Director(510) 496-5201; roger.chan@ebclo.org

Jaime Michel, PhD, Clinical Director(510) 746-2405; jaime.michel@ebclo.org