The juvenile justice system is divided into two separate branches: delinquency and dependency. Juvenile delinquency courts deal with minors who have committed crimes and in many regards is the same as a criminal adult court. The aim of the juvenile delinquency court is very different from that of the adult criminal court. Most adult criminal courts have two goals in sentencing offenders: just punishment and rehabilitation. On the other hand, juvenile dependency courts generally have only one goal: rehabilitation. Juvenile delinquency courts exist for the sole purpose of trying to ensure that juvenile offenders do not become adult offenders.
Juvenile dependency courts assist minors when their parents, for one reason or another, cannot adequately care for their children. There are many, many ways in which minors might find themselves involved in dependency proceedings.
When juvenile courts first came into being in the late 1880s there was only one juvenile court. It was not until the reform movements of the 1960s that the juvenile court system split into the two branches that exist in some form in all states today.
The purpose of this chapter is to give you a basic understanding of both systems, explain how they work, and allow you to familiarize yourself with some of the common terminology. Lawyers are frequently surprised how confusing and overwhelming many people find the legal system. As confusing as the legal system is to adults, it is even more confusing and often scary to children. Perhaps the most important reason you need to understand the basic workings of the delinquency and dependency systems is so you can explain to the children you work with that the legal system is there to protect them and help them.
In most if not every state, it is illegal for nonlawyers to give out legal advice. That means that when you are talking with the children and potentially the families involved in this system you have to be careful to make sure you are explaining the system to people—not giving them advice on what they should do. If people ask you for legal advice you can and should tell them that it is against the law for you to give out legal advice. Most court systems have self-help centers—places for nonlawyers to get help with legal questions. It is perfectly acceptable for you as a nonlawyer to refer people to self-help centers. Self-help centers frequently offer assistance in multiple languages both via interpreters and documents published in different languages.
As with all other areas of the law, the laws pertaining to juveniles are constantly evolving and changing as society changes. Not all crimes committed by juveniles are prosecuted in juvenile delinquency courts. Almost every state has a system in place that allows prosecutors to decide whether a child should be prosecuted as an adult or as a juvenile. Many states have a list of crimes, which, if committed by a person under the age of 18, can be prosecuted in adult court. Generally these lists consist of very serious crimes such as murder, rape, mayhem, or crimes involving the use of dangerous weapons such as guns. Prosecutors have wide discretion in deciding if they think a case should be prosecuted in adult court in or juvenile court.
When children are prosecuted in the adult system they face the same punishment adults face with some narrow exceptions. In Romer v. Simmons (2005), the U.S. Supreme Court held juveniles cannot be sentenced to the death penalty regardless of the crime for which they were convicted. This ruling settled what had been an ongoing debate in the law.
Since the mid-1980s laws prevented the imposition of the death penalty on anyone under the age of 16. In the Romer case, the U.S. Supreme Court spent a lot of time discussing why young people are frequently not as morally culpable for crimes they commit. The Supreme Court relied on evidence that young people's brains are not fully developed and in particular things like decision making and impulse control are among the last phases of development between being a child and being an adult. The U.S. Supreme Court's decision in 2005 is important not only because it settled an issue that had been the subject of debate for many years, but also because it provided clear guidance for lower courts about how they are supposed to treat juvenile offenders, and why children are to be treated differently by the legal system.
Traditionally the juvenile delinquency system was based on a rehabilitative model—the goal was to reform youthful offenders. In the 1950s and 1960s people began to wonder if the traditional rehabilitative model was really able to prevent youths from committing crimes. The 1970s and 1980s saw a response to these concerns when a number of states passed laws that allowed for juveniles to be treated more like adults in criminal courts, allowed for longer sentences, and carried far more severe consequences. Juvenile offenders were not deemed to be as responsible as adults for their crimes but they were no longer viewed as innocent children (Scott & Grisso, 1997). Although many states favored this “tough on crime” stance it became increasingly clear that juvenile laws focused on punishment and not rehabilitation, treated minors too much like adults, and brought about a number of problems as well as failing to account for basic science.
Many laws passed during the 1970s and 1980s that increased penalties for juvenile offenders have come under increasing attack. People worry that sentences are too severe and children are being punished too harshly. Many states are trying to seek a balance between the original rehabilitative model of juvenile justice with a model that also provides punishment for criminal behavior.
Somewhere in states' statutory schemes they have language describing the purpose of their juvenile delinquency courts. Approximately 20 state statutes contain language that indicates that among the purposes of the juvenile delinquency system is rehabilitation. At least six states, Connecticut, Hawaii, North Carolina, Texas, Utah, and Wyoming, have juvenile delinquency systems that are more similar to adult criminal justice systems in that they stress community protection, offender accountability, crime reduction through deterrence, or outright punishment, either predominantly or exclusively. The majority of the remaining states have blended the goals of rehabilitation and punishment.
It is important for you to understand the purpose of the juvenile delinquency system in the state in which you live and work for a few reasons. First, if you are working in the court system as a probation officer or social worker you need to understand what the juvenile delinquency system is trying to teach the children you work with in order to effectively reinforce the justice system's message. Second, you need to be able to explain the purpose to the children and families with whom you are working. When they ask why a child is being ordered to do volunteer work you need to be able to answer that question. The only way you can correctly and effectively answer that question is if you understand the model on which your state operates.
Regardless of the state in which you work and which model that state operates on, the children and the families you work with need to understand that crimes committed by juveniles can have very severe consequences. Children were, and still are, being sentenced to lengthy prison terms, even in states that largely subscribe to a restorative or rehabilitative model of juvenile justice.
Consider the following scenario taken from the facts of a real case that occurred in one of the 20 states that focuses on a rehabilitative model of juvenile justice. Michelle, a 15-year-old girl, had been talking and flirting with an older boy named Jason who was 19. Michelle was from a good home, she did well in school, and had never been in trouble with the law. Michelle learned that Jason had marijuana in his car. She told her 17-year-old friend, Ashley. Michelle asked Ashley to ask Ashley's cousin, Oliver, to rob Jason and take his marijuana. Oliver was 20 years old, had a lengthy criminal record, and generally carried a gun. Michelle generally knew that Oliver had been in trouble with the law before but did not know the specifics of how much trouble he had been in, nor did she know that he usually carried a gun.
Oliver agreed to do the robbery. Michelle persuaded Jason to go a park and said she and Ashley would meet him there. Instead Oliver and another boy met Jason at the park. As Oliver approached the car Jason arrived in Oliver thought Jason reached down to pull a gun. Oliver reached for his gun and shot and killed Jason.
During this crime Michelle never left her house. It took law enforcement several weeks to put the entire chain of events together. They figured out Michelle and Ashley's involvement in the crime by looking at telephone records, when Michelle called Jason, when Ashley called Oliver, and when Michelle called Oliver. Michelle and Ashley were charged with conspiracy to commit murder. Oliver was charged with conspiracy to commit murder and murder. When Michelle went to trial she was nearly 17 years old. Because of the nature of the crime with which she was charged the prosecutor was forced to charge her as an adult. Michelle was convicted at trial and received a sentence of 15 years to life. The court had no discretion to sentence her to any lesser sentence. Fifteen years to life means the first time she will be eligible for parole will be 15 years from when she was sentenced.
Whether Michelle's sentence is fair or appropriate is open to debate. Certainly Michelle should be held accountable for her actions regardless of the fact that she was a child. A sentence that will likely require her to spend the rest of her life in prison for something she did when she was 15 years old ignores the fact that she probably lacked the foresight to consider how dangerous her plan was or the potential, horrible consequences of her actions.
Michelle's case demonstrates what the children and families you work with need to understand—the law treats crimes committed by children very, very seriously. If you are working in the juvenile justice system part of your job will be to impress on people the potential seriousness of the situation or the fact that if children graduate to more serious crimes the consequences can be far greater than most children or their families can imagine.
As modern psychology has continued to advance so has our understanding of juvenile development. Modern psychology provides indirect proof that adolescents are cognitively and socially less mature. That immaturity affects their decisions to engage in criminal conduct as well as their decisions as defendants in criminal proceedings.
Youth crime has a high social cost. Those costs can be lessened with policies that ensure that the impact of punishment on youthful offenders will not affect their future lives. Incarcerating youths who are likely to soon outgrow their criminality is a waste of young lives. This is not to say juvenile offenders should not be bear any consequences from their actions; however, intervention and rehabilitation benefit both the youth and society far more than incarceration. Society should recognize that there is some class of youths that may be better served by treatment and counseling.
During the past decade juvenile laws have begun to return to a more rehabilitative model of juvenile justice. This shift has been advocated by many in the social sciences as well as advances in the understanding of human development. This paradigm shift is also due at least in part to the U.S. Supreme Court decision in Romer v. Simmons and the express recognition that children, their personality traits, and their decision-making abilities are not as well formed as those of adults:
[T]he personality traits of juveniles are more transitory, less fixed. [Citation omitted.] These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” [Citation omitted.] Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. [Citation omitted.] The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. (Romer v. Simmons, 2005)
It is important to understand that in Romer v. Simmons the U.S. Supreme Court was interpreting the U.S. Constitution's Eighth Amendment, the constitutional amendment that prohibits cruel and unusual punishment. When the U.S. Supreme Court is interpreting the federal Constitution all states and all courts are bound by the Supreme Court's ruling. In other words, since the U.S. Supreme Court has decided that minors, because of the fact they are still children, must be treated differently in the juvenile justice system, all states must act consistently with this decision.
The juvenile court has original jurisdiction over any crime involving a minor. The term original jurisdiction means the juvenile court is the only court with the legal authority to hear the case. Juvenile courts can only hear cases that involve minors. Each state is free to define how old a person can be and still be a “minor.” New York and North Carolina define a juvenile as anyone under the age of 15. Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas, and Wisconsin define a minor as anyone under the age of 16. All other states as well as the District of Columbia define a minor as anyone under the age of 18 (Office of Juvenile Justice and Delinquency Prevention, n.d.).
As mentioned earlier, most, if not all states, have lists of certain crimes that, if committed by a minor, can be prosecuted in adult court. Other states allow for prosecution of minors in adult court based on the prior record of the minor. In these instances the juvenile courts do not have “original jurisdiction,” they have concurrent jurisdiction with the adult courts. The system that allows for certain crimes to be prosecuted in adult court is also referred to as prosecutor discretion or direct file jurisdiction.
Many states have structured their juvenile delinquency courts to allow the court to hear a case until a defendant has reached their mid-20s. In other words, if people are prosecuted in juvenile court when they are a minor but they are still on probation when they are 19 or 20 years old, they are still under the supervision of the juvenile court system as opposed to the adult system.
Some states have statutes that set the lowest age of juvenile court delinquency jurisdiction. Other states rely on common law or previous legal decisions. These laws frequently refer to infants. The laws defining the minimum age at which a child can be prosecuted have their roots in the British legal system from the 1700s and 1800s. Then the term infant was used to describe children as old as 5 or 6 years old. The basic concept is that below a certain age children are incompetent to form the necessary intent to commit crimes and are therefore exempt from prosecution. Most crimes require some form of intent, usually referred to broadly as criminal intent. The vast majority of crimes are either general intent or specific intent crimes. The other two, less common kinds of intent, are criminal negligence and strict liability crimes.
General intent means people have to intend the act but they do not have to intend the result of the act. Specific intent means the person had to intend the result. Murder is a specific intent crime—when the person pulls the trigger of a gun the intent is to kill another person. The intent is not merely to pull the trigger. Battery is a general intent crime—someone hits another person. The crime is committed as soon as people throw a punch. It does not matter whether they actually hit the person or if the recipient of the punch is actually injured. Children below a certain age are not capable of truly understanding what they are doing or engaging in truly intentional conduct in the same manner as an adult. Think about a preschool-age child. They are often incapable of predicting the consequences of their actions. They act extremely impulsively. Regardless of their conduct, prosecuting a young child would serve no social or penological purpose.
The definition of criminal negligence varies from state to state. Generally it can be defined as more than ordinary carelessness or mistake in judgment. People act with criminal negligence when they act in a way that creates a high risk of death or bodily harm and reasonable people would have known that acting in that way would create such a risk. Strict liability crimes are very rare and usually only occur in connection with regulatory offenses.
How juvenile delinquency cases are initiated varies greatly from state to state and even from community to community. When a minor allegedly commits a crime, law enforcement has two options: initiate juvenile delinquency proceedings or divert the matter into some form of diversion program.
There are numerous kinds of diversion programs. Many schools have their own student-run judicial process where students prosecute minor crimes committed by other students, conduct trials, and impose sentencing. For minor crimes this is a common way to keep children out of the juvenile justice system. Other diversion programs can include drug treatment programs or community service. There are limitless possibilities for diversion programs. The decision to divert is generally based on a number of considerations: the type of alleged criminal conduct, the opinion of the victim of the crime, whether the minor has a prior criminal record, and input from the minor and that minor's parent or legal guardian. The entire purpose of diversion is to keep children out of the justice system while ensuring that they will not commit future crimes. In order for law enforcement to feel confident that these objectives will be met, both the minor and their parents have to be willing to commit to the diversion process.
Law enforcement is not the only entity that can refer a matter to the juvenile delinquency court. In many states, schools, parents, victims, and probation officers have the capacity to refer a matter to juvenile delinquency court, although once the referral is made law enforcement generally is involved in the investigation of the allegations.
Another common informal treatment of juvenile delinquency cases is something called a consent decree. A consent decree is generally a written contract between a minor and either the prosecutor's office or the juvenile delinquency court. In the contract the minor agrees to certain conditions such as doing or not doing certain things for a period of time. For example, a minor might agree to pay to repair a car they vandalized, attend drug counseling, attend school on a regular basis, or agree to a curfew. Consent decrees are a type of informal probation. Once the minor completes the terms of the consent decree the entire matter is dismissed. If the minor fails to successfully complete the terms of the consent decree or fails their informal probation for some other reason, the matter is referred back to the juvenile delinquency court for formal proceedings.
Once a case is referred to the juvenile delinquency court it goes to intake. In most states intake is run either by the prosecutor's office or the probation department. Intake decides if the case should be handled formally or informally. Informal treatment of a case can include referring the matter to diversion. If intake decides to proceed with formal proceedings either because minors failed their informal probation or because the matter was too serious to qualify for informal proceedings, the formal court process begins. Generally it is at this time that intake decides whether a case should be transferred to adult court or if a delinquency petition should be filed in juvenile delinquency court. The filing of a delinquency petition is the filing of a formal legal document that sets forth the crimes the minor allegedly committed.
Although courts, lawyers, and law enforcement often seem rigid and formal, the truth is that many of the adults involved in this process truly seek to help the children involved in the juvenile delinquency system. Unfortunately, although many of these adults want to help they are generally not trained in psychology or child development. This is where the role of people with such training can become very important.
If you are concerned that a judge or a lawyer is missing something important about a child you work with, you should not be afraid to speak up. Most judges are prevented from speaking to you directly about a particular case because of the all rules. However, you can always talk to the lawyers involved—their ethical rules not only allow them to talk to you, if you have something important to tell them about a child or about the facts of a case, they are ethically required to listen to what you have to say. If you feel like you really need to communicate with a judge, ask the judge's clerk the best way to go about it. The clerks usually have close working relationships with the judges they work with and they can give you good insight into the best way to deal with the situation.
Many of the children who end up involved in the juvenile delinquency system are poor, come from single-parent homes, often have untreated mental or emotional problems, have experienced some form of abuse at home, or have faced other challenges that have in some way contributed to their being in delinquency court. Many of the people who work in the juvenile delinquency system lack formal training in recognizing how these factors may have contributed to a child becoming involved in the system. The job of educating lawyers and judges often falls to the social service workers or probation officers.
Some years ago there was a case where a young man, let us call him Michael, kept getting into trouble. Michael lived in a rough neighborhood and his mother worked long hours, which limited her ability to properly supervise her son. Over the course of a few years Michael was in and out of the delinquency court system on countless occasions. Each occasion he was caught engaging in more and more serious criminal conduct. The lawyers who dealt with Michael found him hostile and noncommunicative. Finally, Michael was ordered detained in juvenile hall. It was only then that a trained social worker began to realize what part of the problem was—Michael had an extremely low IQ, so low he was legally incompetent. He was hostile and noncommunicative with the people around him because he did not understand what was going on around him and he was scared. Once the legal system had him evaluated and understood Michael's needs, the system was able to fashion an appropriate solution—a solution that ultimately kept him out of the juvenile delinquency system altogether.
A delinquency petition differs from the charging documents filed in adult court. At the conclusion of an adult criminal case a defendant is either acquitted or convicted. If convicted they are sentenced. Because the goals of the juvenile justice system are historically different, and in many states still are very different than the adult criminal justice system, the purpose of the delinquency petition is very different. At the end of a delinquency petition there is a request that the court sustain the petition and judge that the minor is delinquent and now a ward of the delinquency court.
The term ward of the court has a very specific meaning to lawyers and judges. In juvenile delinquency proceedings that term means the court now has the authority to decide what should happen to a minor. In some ways the court has stepped into role of being the minor's parent.
After the delinquency petition is filed the court holds a detention hearing. A detention hearing is a judicial determination as to whether a minor will remain in law enforcement custody prior to the adjudicatory hearing. The courts have the authority to order minors remain in a secure detention facility, often juvenile hall, because the minors may be deemed a danger to themselves or to society. The juvenile court also has the authority to fashion specific release conditions before agreeing to allow a minor out of custody. Those release conditions can include ordering counseling; placing the minor on house arrest, which often means they have to wear a GPS tracking device or ankle bracelet; setting curfews; or any other set of conditions that are calculated to ensure the minor appears in court when ordered and to protect the public.
In most states minors do not have a right to post bail. That means if a court determines that a minor should remain in custody pending their adjudicatory hearing the minor's parents cannot post money to secure the minor's release.
In most states prior to a detention hearing, intake conducts an interview of both the juvenile and their family to determine whether release is appropriate. Different states have different rules about what can and should be asked during this interview. Frequently the court wants to know about the child's home and family life. Many courts specifically instruct the person doing the interview not to ask about the facts of the alleged criminal case as doing so could interfere with the child's Fifth Amendment rights to remain silent. You should be careful to understand your agency's particular policy in this regard.
Once a delinquency petition is filed, an adjudicatory hearing is set. An adjudicatory hearing is similar to a trial in adult proceedings but with some significant differences. In In re Gault (1967), the U.S. Supreme Court established that under the 14th Amendment, children accused of crimes in a delinquency proceeding must be given many of the same due process rights as adults, such as the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel.
(The 14th Amendment was passed after the U.S. Civil War. Prior to the passage of that amendment it was unclear whether the rights protected by the constitution applied in the states or if they only applied with respect to the federal government. For example, the First Amendment states that people who live in the United States have the right to free speech. They can say what they want. However, even though the way the Bill of Rights was first written made it clear that the federal government could not interfere if a person in Ohio wanted to criticize a member of the Ohio state legislature, it was unclear whether the state of Ohio could interfere. The 14th Amendment made it clear that the state could not interfere, that the rights guaranteed by the Bill of Rights bound state governments as well as the federal government. Today it seems obvious that a state cannot abridge a person's rights as secured by the Bill of Rights, but 150 years ago this was the subject of much debate.)
In most states juvenile delinquency proceedings are not public—only the minor's parents have the right to attend. In the vast majority of juvenile delinquency proceedings the determination of whether the petition should be sustained is made by a judge, not a jury. If the prosecutor has decided to charge the child as though the child were an adult, then the proceedings are open to the public and the child has the same rights to a jury trial as an adult.
Prior to an adjudicatory hearing a final determination as to whether the matter should be heard in adult court is made. Once an adjudicatory hearing is held and the court decides whether to sustain the petition the case can no longer be transferred to adult court.
If the judge, or in a limited number of states, the jury, decides not to sustain the petition, that is the end of the case. It is the same as an acquittal in adult court. If the petition is sustained a disposition hearing is set. At the time the petition is sustained the minor becomes a ward of the court. This is the stage at which the court steps into the shoes of being the minor's parent. You might hear the term in loco parentis. This is a Latin term that literally means in place of the parent. In place of the parent is exactly how the juvenile court views their role from this point forward. The court now has the authority, or the discretion, to decide where the children live, where they go to school, what time they come home at night, whether the children are allowed to play sports. The court has the ability to make every decision a parent would normally make. All of those decisions will be made at a deposition hearing.
A disposition hearing is the same thing as a sentencing hearing in adult court. Probation writes a report and recommends a disposition. Probation has broad discretion regarding what it can recommend for a disposition. Because many juvenile delinquency systems are based on a rehabilitative model, probation's recommendations often include recommendations for drug treatment and counseling. Dispositional recommendations can also include time spent doing community service work, being sentenced to house arrest, serving time in juvenile hall, or serving time in other, more long-term juvenile detention facilities.
Less than a decade ago many states had far more options for probation to recommend for juvenile disposition hearings. For example, probation could recommend placement in halfway houses or group homes as part of a delinquency disposition. Because so many state budgets have been so drastically affected after the Great Recession many of these options no longer exist.
At the dispositional hearing the minors, through their attorney, are allowed to suggest what they think would be an appropriate disposition if they believe something different from what was recommended by probation would be better. The prosecution also has the right to recommend something different from the recommendations made by probation. The court has the authority to accept probation's recommendations, follow the recommendations of the minor and minor's counsel, follow the recommendations of the prosecutor, or come up with a plan of its own.
Often a child's parents have a very limited role at this state. Usually whoever prepares the recommendations interviews the parents about what the parents want to happen to their child. Although the opinion of the parents is considered, the court does not have to follow the parent's desires. Similarly, although many judges will allow parents to speak during the disposition hearing most states do not give the parents a right to speak—meaning the court does not have to let them.
Perhaps more than anyone else, parents are often confused and frustrated by how the court works during a disposition hearing. In some cases it can be important to explain to the parents the reasons why a court has made a certain ruling. Parents may not understand why their children are being ordered to do community service, they may not believe their child has a drug problem, or they may not understand why the child is being detained in juvenile hall for a period of time. It is important for you to understand why the court has made the orders it has so you can explain that to the parents. The child involved has the best chance of successfully exiting the juvenile delinquency system when the parents support the court's actions and encourage the child to do the same.
The juvenile delinquency system uses terminology that is very different from the terminology used in adult criminal court. Petitions are sustained instead of minors being found guilty. There is a juvenile disposition instead of a criminal sentence. Despite these differences the collateral consequences of having a juvenile petition sustained can be very serious and can follow a minor for life.
In criminal law, collateral consequences is the term used to refer to the indirect consequences of being convicted of a crime. Lawyers and courts are supposed to inform defendants, both minors and adults, of the most serious potential collateral consequences of being found guilty or having a petition sustained. A common collateral consequence for both minors and adults who are convicted of some kind of a crime is that if they are not a citizen of the United States their conviction may result in them being deported or denied admission into the United States. For a minor this can have devastating effects.
Many minors are brought into the United States illegally as children. They have little or no contact with their native country. They get into trouble in the United States, sometimes serious trouble. Instead of being released back into society, they are sent to a deportation facility and ultimately deported back to their home country. The fact that they are young, cannot speak the language, and have no family contacts left in their native country is irrelevant. They are returned to their native country and left to fend for themselves. Illegal reentry into the United States is a serious federal crime that can carry lengthy terms in federal prison.
Every state now has some form of sex offender registration for those convicted of specific sex crimes. Most states require minors to register as sex offenders if they are the subject of a sustained juvenile petition for a specific sex crime. Depending on a number of factors, including what state the minors are in, their age at the time they committed the offense, and the type of offense, they may be required to register as a convicted sex offender for the remainder of their life.
Many states also have three strikes laws—laws that require a life term in prison if a person has been convicted three times of certain classes of crimes. Again, depending on a number of factors, juvenile strikes can follow a minor for the rest of their life. Many states have wash-out provisions; they do not count felony strikes if a person remains out of trouble for a specific number of years. Other states do not have such provisions and strikes last forever.
It would be inappropriate for you to advise anyone about the potential collateral consequences of sustained petition in a specific case. However, you need to know that these things exist so you can try to warn children whom you think are likely to get into trouble or so you can warn their parents. Sometimes just being able to make children understand how much trouble they could be in is enough to make them think twice.
In general minors have the same rights when they are facing criminal accusations as adults. For example, when adults are arrested they have the right to make a phone call, which is generally used to secure legal representation. In many states minors are allowed to call not only a lawyer but also specifically their parents. Although minors generally have the same rights as adults, courts can apply different standards in determining whether a minor's rights were violated. Courts are more likely to find that a minor's rights have been violated when law enforcement uses aggressive tactics to obtain information from a minor—tactics that, depending on the circumstances, might be perfectly acceptable if used on an adult.
Consider the case of Jonathan Doody. Doody was a 17-year-old high school student who was a suspect in a murder investigation. He was originally contacted by law enforcement while participating in a flag ceremony at a high school football game. He voluntarily went with law enforcement to the police station for questioning.
When he arrived at the station police officers purported to read Doody his Miranda warnings. Miranda warnings are the rights read to suspects in custody, which informs them that they have the right to remain silent, they have the right to be represented by counsel, and that anything they say can be used against them in court. Over the years law enforcement has developed a modified version of these rights to be read to minors, which makes them more understandable to young people.
The officers who interrogated Mr. Doody misrepresented the Miranda warnings. A group of law enforcement officers proceeded to question Mr. Doody for more than 12 hours between the hours of 9 P.M. and 10 A.M. the following morning. Mr. Doody was not allowed to sleep or take a break during the questioning. The officers arranged the questioning in a tag team format—as some officers got tired they left the room while other officers took over. Mr. Doody ended up admitting to having committed nine murders.
An appellate court ultimately overturned Mr. Doody's conviction and threw out his confession because law enforcement interrogated a 17-year-old who had never been in trouble with the law for more than 12 hours, completely misconstrued Miranda warnings, and essentially overcame the will of an unsophisticated 17-year-old kid (Doody v. Ryan, 2011). Many other courts, including the U.S. Supreme Court, have frequently cautioned that confessions by minors are to be viewed with suspicion because they are so easily influenced by adults. The kind of questioning Mr. Doody experienced might be legal if the questioning had been directed at an adult.
In a vacuum it is impossible to set forth a series of bright line rules for what kind of investigatory tactics by law enforcement are acceptable when minors are involved. Because of their youth and lack of sophistication courts will treat minors differently, just how differently depends on a number of circumstances.
All states allow minors to be tried as adults for certain crimes. As mentioned earlier in this chapter, minors cannot be sentenced to the death penalty because of their youth. The U.S. Supreme Court has also held that minors cannot be sentenced to life in prison without the possibility of parole. This does not mean, however, that people who committed a crime as juveniles cannot spend the rest of their life in prison—it just means that it cannot be their initial sentence.
Consider the example of Michelle given earlier in this chapter. Her sentence was 15 years to life. Her sentence is referred to as an indeterminate term, meaning that how long she will spend in prison is undetermined but in no circumstance can it be less than 15 years. That means her first hearing before the parole board will be 15 years from when she was sentenced. Most parole boards in most states are reluctant to release people sentenced to indeterminate terms, particularly when they were convicted of crimes such as murder.
The U.S. Supreme Court decision banning a sentence of life in prison without the possibility of parole for a minor occurred within the past couple of years. Given that fact, coupled with an increasing body of scientific literature suggesting that children's brains are less fully developed and that they are therefore less culpable for their crimes, it seems likely that children who have received indeterminate prison sentences may have a greater chance of being released from prison in the future.
Modern juvenile dependency courts exist in large part due to a movement to end child abuse and neglect that began to gain momentum in the late 1960s and 1970s. In 1974 the passage of CAPTA, the federal Child Abuse Prevention and Treatment Act, which marked the beginning of a national move toward Mandated Reporter Laws, also marked the beginning of the dependency court system.
Once this country began to develop child protection laws it needed a way to implement the protections those laws offered. Criminal courts could prosecute parents who abused or neglected their children, but what happened to the children next? Did they return to their parents? Who would oversee the future treatment of the children? By the 1960s and 1970s juvenile delinquency courts were full to capacity dealing with children who had allegedly broken laws. Dependency courts began as an effort to address the needs of children who had not broken laws but were the victims of abuse or neglect.
A case can get started in juvenile dependency court whenever there are allegations of parental abuse or neglect. Frequently the department of social services or law enforcement will make a referral to dependency court because of concern about potential abuse or neglect of children in a particular home. Criminal charges do not have to be initiated against a parent or parents for the juvenile dependency court to have jurisdiction. Another common way parties arrive before the dependency court is when one or both parents are facing or have been convicted of criminal allegations.
Sometimes the criminal allegations may be related to abuse or neglect of a child. However, there are countless other circumstances that may give rise to dependency proceedings. For example, if a parent is convicted of possessing drugs the matter may be referred to dependency court for a determination of whether it is safe for the children to remain in the home. In other cases the parents may have been sentenced to lengthy prison terms for wholly unrelated conduct. The courts may intervene to make sure there is a safe place for the children to live, and, in some cases, may terminate an individual's parental rights depending on their underlying criminal conduct.
When the dependency process begins, an initial determination is made by law enforcement or social services as to whether the children should be allowed to remain in the home. If the children are not in immediate danger of neglect or abuse, and are living with a parent, relative, or friend, they may be allowed to remain there pending the court proceedings.
When children are left in the home it is frequently on condition that the family will agree to supervision of social services as well as other terms such as counseling or treatment for drug or alcohol abuse.
If a child is removed from the home there are time limits on how long the juvenile dependency court has to act. Most states have laws requiring juvenile dependency courts to have an initial hearing within 72 hours after a child has been removed from a home. Children who are removed from the family home are taken into protective custody and are usually taken to some kind of children's receiving home. Law enforcement officials who place children into protective custody are acting in the best interest of the children and making sure they are not in danger. However, this can be a terrifying experience for children. Even if their home life is less than ideal it is at least familiar. Being taken from their homes and thrust into a new and unfamiliar environment can be a very difficult experience for many children.
When children are taken into protective custody, law enforcement officers or social workers will immediately attempt to notify the parents or guardians.
The juvenile dependency system is premised on the belief that it is best for children to remain with their families if at all possible. An investigation is triggered when children are taken from the home and placed in protective custody. The purpose of the investigation is to decide whether the children can be safely returned to the home from which they were taken. This initial investigation is made by social workers. In many states these social workers work for the intake unit of the department of social services.
The social worker must decide whether the children were at significant risk for abuse or neglect. If the social worker decides it is safe for the children, the children can be released to the parent. No formal court action is taken. However, as mentioned earlier, the parent may have to sign an agreement agreeing to certain conditions to keep the children in the home. In some cases this agreement can mark the end of the dependency proceedings.
In cases in which the abuse or neglect was minor or where the social worker believes the parents can rectify the situation with the help of social service workers, social service workers have the discretion to fashion an agreement that states if the parents meet certain conditions, including no further reports of abuse or neglect over a specified period of months, no further action will be taken.
In other instances the social worker may decide that the children should remain in the home if the parents are willing to agree to certain conditions during the pendency of the court proceedings.
If the social worker decides the children are at risk and the children are removed from the home, the social worker must file a petition with the juvenile dependency court. The petition must include both necessary legal information as well as a statement telling why a dependency proceeding is necessary for the safety of the children. In response to the petition, a detention hearing is held before a judge or referee. (A referee is a lawyer who is appointed to act in a similar capacity as judge. Referees have very limited jurisdiction. A referee in juvenile dependency court can only hear certain limited matters. Often referees in dependency proceedings are lawyers who have spent many years practicing in a particular field, such as child and family law.)
If children were removed from the home, the first hearing in dependency court will be a kind of a detention hearing. Different states use different terms to describe this hearing. In some states it is simply called the first hearing. In other states it is called an initial detention hearing.
If the children were not removed there is still some kind of a first hearing. When this is the same the formal name of the first hearing makes clear that the hearing is not to determine where the children will reside while the abuse or neglect allegations are handled.
Regardless of whether the children have been removed from the home, one of the main objectives of this first hearing is to advise parties of the allegations, appoint counsel (if necessary), and set a future hearing. It is very important the parents understand why they are in dependency court and what they did or did not do to cause the government to be concerned about the safety of their children. Depending on the age of the children involved, sometimes the children are allowed to be present during these hearings. If they are present the court will often try to explain to the children what is happening.
If the children had been taken out of the home and are not returned to the parents, the children remain in protective custody. All dependency courts have investigators, although different jurisdictions call the investigators by different names. The role of the investigator is to meet with the parents, investigate the allegations of abuse or neglect, and write a report for the court hearing. In most states the investigators work for the court and report directly to the court—they typically are not members of law enforcement.
It is common for parents to be reluctant, even hostile, to work with the court investigator. Think about it from the parents' perspective: Someone has just come and taken their children away. The parents may not understand the legal system, they may be frightened, and they are likely concerned about their children's health and safety.
Think about the following from a real case: A young woman and her husband illegally grew marijuana. Their home was raided by FBI and DEA agents early one morning. Law enforcement agents took the couple's three young daughters away from them. The young woman had recently emigrated from China and did not speak English. She was from rural China and had very little education. She later told someone she was terrified because all she could think about was China's one child policy and the fact that she had three daughters. She did not know if the United States had a policy regarding how many children people could have. She did not know where her children were or even if they were being cared for. She did not understand the role of the social workers or why they kept asking her questions.
If you are in the role of the court investigator or social services worker you have to keep in mind that the people you are trying to help may not understand the system and may not realize you are trying to help them. People from other countries may bring with them fears from other political systems, fears that were well founded in their homelands but which make it much harder for you to work with them in this country.
The report is an evaluation of the case. Whenever possible the report contains a reunification plan along with recommendations to the court regarding where the children should be placed. When reunification is not possible the report still will make recommendations about where the children should live.
If the court approves, the investigator arranges visits between the parents and their children. The court investigator can also arrange for services such as counseling, job training, parenting classes, drug and alcohol treatment, anger management classes, or any other services that will help reunite the family.
Courts frequently follow the recommendations in the report. Writing the report is a big responsibility.
After the first hearing the court sets a jurisdiction hearing. The purpose of this hearing is to determine whether the allegations of abuse or neglect are true. The evidentiary standard used at this hearing is a preponderance of the evidence. This is the lowest evidentiary standard in the U.S. legal system. This standard has been described as 50% plus a feather or 50% plus a peppercorn.
It is often very difficult for people to understand that in order to send a person to prison the prosecutor has to prove guilt beyond a reasonable doubt. But in order to remove children from their parent there just has to be a preponderance of the evidence. (Removing a child from a home is different than terminating parental rights. A termination of parental rights requires clear and convincing evidence.)
In dependency court there is no right to a jury trial. All decisions are made by the judge. The judge's decisions are subject to review by appellate courts. If the court decides that abuse or neglect has been proven by a preponderance of the evidence the court sustains the petition and makes a finding that it has jurisdiction. Jurisdiction in this instance simply means that the court finds it has authority to intervene to protect the child.
When and under what circumstances a parent has the right to be represented by legal counsel in juvenile dependency proceedings can be a difficult question to answer. In all states, if parents can afford to retain their own legal counsel they cannot be denied the right to be represented by a lawyer in court. On the other hand, if parents cannot afford to retain their own counsel, determining when they are entitled to appointed legal counsel can be difficult.
Some states, either by statute or prior case law, have determined that before people's parental rights can be terminated they have the right to be represented by appointed counsel. Other states follow a complex system that makes a case-by-case determination of whether a parent is entitled to an appointed lawyer.
In the early 1980s, in Lassiter v. Department of Social Services of Durham County (1981), the U.S. Supreme Court decided that there is no right to appointed counsel in every case. The Supreme Court stated that whether a parent should be entitled to an appointed lawyer is a decision that should be made by the judge in each dependency case based on all of the surrounding circumstances. Although it is easier to have a clear and simple rule about when the court has to appoint a lawyer, justice is better served by allowing judges to tailor their decisions to the facts of each case.
Appointing a lawyer in the case of every dependency proceeding would cost a lot of money and a lot of resources. In Lassiter the mother had been convicted of murder and sentenced to a lengthy prison term. If she got out of prison, it would be long after her son was an adult. In that instance no one was well served by the mother having appointed counsel; not the mother, not the child, and not society.
It would be next to impossible in the context of this book to explain all the times parents are and are not entitled to have appointed lawyers to represent them in dependency court. The rules vary greatly from state to state.
Courts have consistently held for many years that children do not enjoy the same rights and privileges as adults. For example, children do not have the same rights as adults when it comes to free speech under the First Amendment. As discussed earlier in this chapter, children have the same rights as adults in criminal proceedings. In addition, children have specific rights in dependency court, which can be greater than the rights of the adults.
The children who are involved in dependency proceedings are the ones who are the most significantly impacted by the court's decision. It is the children who have the greatest interest in the outcome. Children's rights to remain with their family is probably more important than adults' rights to keep their child. Among the most important things to children is a sense of stability, which allows their minds and their character to grow. Uncertainty about where they are going to live, who they are going to live with, and what is going to happen to them is counterproductive to their growth and development.
Courts are in the difficult position of having to balance a child's needs and wants with the court's responsibility to make sure that a child is not the victim of abuse or neglect. In order to meet these sometimes competing goals most states have a system that allows for children to have their own advocates.
Court Appointed Special Advocates or CASA is a group of highly trained volunteers. CASA started in the late 1970s when a judge in Washington state found himself having to make a decision on behalf of abused and neglected children. He was concerned that the only information he had was from child protective services. Although child protective services had the best interests of the child at heart, the judge was concerned that the children had no voice in the process. The judge decided that volunteers could be assigned to a case, meet with the children, and speak on their behalf. About 50 people responded to the judge's first request. Today CASA exists in every state in the nation.
Among the goals of CASA is to ensure that all abused or neglected children in the dependency court system have their own advocate. Once a child is assigned a CASA advocate that person stays with the child through the entire court process and often beyond. The CASA advocate is often the only constant adult presence in some of these children's lives.
CASA advocates are trained to do more than just advocate for what the children want because that may not always be in the child's best interests. The advocates also explain the court process to the children and help them in other ways outside of the court process. A lot of research has been done on the effectiveness of the CASA program. That research has consistently shown that children involved in the CASA program do better in school and adjust to their new surroundings far better than their peers who were not assisted by CASA.
Navigating delinquency and dependency courts can be an overwhelming challenge both for children and their families. Judges and lawyers often use words and phrases that are totally foreign to people who have never been involved in the system. In modern times delinquency and dependency courts handle enormous case loads. It will likely fall to you to explain to the children and families you work with how the system works and the goals of these two very different branches of the court.
If you are working with children involved in the juvenile delinquency court it is important that you familiarize yourself with the theory behind your state's delinquency court, whether it is based on a rehabilitative model or a punitive or punishment model. If you are working in the dependency system, you will be faced with the tough task of helping children who may be separated from their parents against their will and as a result of something the parents, not the child, did.
There are numerous programs throughout the country to help children who are dealing with both the delinquency and dependency systems; only a couple of examples have been discussed in this chapter. If you are working in an agency setting, hopefully that agency will a list of local programs that will aid you in your effort to assist the children with whom you are working.
Whatever the case, you need to keep in mind that the children you are working with likely view you as the adult authority figure and the person they can rely on to guide them through this process. The more you know and understand, the more you will be able to successfully assist both children and their families.