WASHINGTON STATE: DEBATE
Dispute erupts over using jail as fix
for foster-care runaways
Maria had already run from foster care three times
when a judge had her write an essay with as much introspection as a
13-year-old could muster.
"I will no longer hang out on Six Street with all
those hard-core Surenos and I will no long have any resin to come back
to this Juvinle Detenion Center because I going to be on my best behaver,"
she wrote in July 2003, from the Yakima Juvenile Detention Center. "I
A few weeks later, she ran back to the streets to hang
out with the street gang and take methamphetamine.
That sort of self-destructive behavior is repeated
over and over each week across the state. Researchers estimate as many
as one in five adolescent foster kids in the state and nation runs away
But Maria is now a legal test case because of what
happened next. The Washington Department of Social and Health Services,
her legal parent, asked a Yakima County court commissioner to impose the
toughest love in his power.
Although running away is not a crime, the
commissioner, Robert Inouye, found Maria in contempt of court and
sentenced her to 30 days in juvenile jail, with no chance of getting out
early. She ran two weeks after being released, so he held her in
contempt again and gave her another 60 days.
Inouye's orders involving Maria and two other teenage
girls are on appeal. If upheld by the Court of Appeals, the cases will
create precedent for other judges to use jail as a solution for chronic
runaways from foster care. That power could allow a judge to hold the
child until age 18.
"We're all following this case because it will tell us
when that power can be used," said Stephen Hassett, the state attorney
general's lead lawyer on foster care.
State law allows judges to detain foster kids on
contempt-of-court for up to seven days to coerce good behavior. Inouye
went beyond the law to use a different kind of contempt power, his
so-called "inherent power of contempt," rooted in a judge's need to
control the courtroom and one commonly used to punish.
Hassett said that power is appropriate in extreme
cases to protect children from themselves.
"The issue isn't just whether the kids were running
away. It was the kids were placing themselves in significant danger," he
said. "I think the key element is the court is exercising its authority
to protect kids from lasting harm."
But Inouye's legal interpretation, and the length of
the jail terms, are controversial among public defenders, child-welfare
researchers and other judges. Critics say locking up kids for months for
noncriminal behavior is ineffective and obscures legitimate reasons that
kids run from foster care.
No statistics are available, but other juvenile-court
judges around the state knew of no other cases where such long contempt
sentences were imposed. "I can't imagine a circumstance where I would do
that," said Chuck Snyder, a Whatcom County Superior Court judge and
chair of the juvenile-law committee for the state judges association.
"My personal philosophy is to try and solve problems. If you alienate
them, you don't solve problems."
DSHS staff in Yakima and elsewhere around the state
are also queasy about requesting inherent contempt. This week, a panel
of experts who are trying to improve the state foster-care system
ordered DSHS to significantly reduce how long runaways are gone from
care without increasing the amount of time the kids spend in jail on
Ken Nichols, DSHS child-welfare director for Yakima,
said he now must personally sign off on each request after being alerted
to the issue by The Seattle Times.
"What I'm concerned about is we don't do it
willy-nilly," he said. "I think generally people, including myself,
would prefer this not be used, and it be used only for those young kids
whose lives are in danger."
A widespread problem
In 2002, Florida foster-care officials realized that a
5-year-old girl, Rilya Wilson, had been missing from foster care for
more than a year and was presumed dead. Fearful of a similar scandal
here, DSHS quietly began checking, in files and in person, on its own
missing foster children.
There is cause to be concerned. In 2004, 1,040 of
Washington's foster children � 7 percent of all children in care � had
run away at least once since they entered care, according to an internal
DSHS study. Of those, 648 were gone at the time of the study.
DSHS did not provide the percentage of adolescents who
ran, but other research, including a study based in a homeless youth
shelter in Seattle, estimate that 15 to 20 percent of teens in foster
And the problem is growing: The number of times foster
children in Washington run away each month has more than doubled in the
past eight years, for reasons not explained in the study. Runaways
tended to be girls and to be long-term wards with at least seven prior
They often end up in juvenile jail, although rarely as
long as Maria.
After a year of work, DSHS' search resulted in all but
four children being found; two were reported to the National Center on
Missing and Exploited Children. DSHS staff recommended to top
administrators in late 2003 that it be made an annual exercise, but that
recommendation has not been acted on.
Runaways are "a proxy for other problems," said Mark
Courtney, director of the University of Chicago's Chapin Hall for
Children � a research and policy center � and an expert on runaways from
"One way to look at runaway problems is kids vote with
their feet. They're saying, 'This out-of-home care that's supposed to be
for my own good doesn't feel like that to me.' It should be a huge
priority," he said.
Judges using their power
Frustration with runaway foster kids has brewed since
an appellate-court ruling in 2000 curtailed judges' contempt-of-court
power in those cases. But the ruling also said judges could use their
inherent power when all alternatives were exhausted.
Inouye, a juvenile-court commissioner since 1999, said
he grew alarmed at seeing the same runaways come before his court with
chilling tales of drugs, crime and prostitution.
He levied his first inherent-contempt sanction in late
2003, giving a month in jail to a 17-year-old boy who had violated 14
He levied five more in quick succession: 90 days to
the same boy; 60 days to a 16-year-old girl who had run to Montana to
live with a felon; 30 days to a 15-year-old girl who had gotten pregnant
while on the run; and, twice to Maria.
Inouye, as he sent Maria to jail for 30 days, compared
juvenile jail to a "home" that was preferable to the streets. Time in
jail "will give her an opportunity to reflect and become more accustomed
to a lifestyle which includes school and continuity."
The long stints were not intended to punish, Inouye
said in an interview. Instead, he hoped they would give DSHS time to
provide the children with substance-abuse or mental-health treatment.
"It's true the Legislature lays out law as a way to do
things," said Inouye, 54. "But when you see a genuine problem in front
of you and there's no route specified by the Legislature to deal with
it, I think it is fair to use a power available to the judiciary."
A breakdown in jail
In 2002, at the age of 12, Maria was caught
shoplifting a $3 blue marker from a Yakima grocery store. Police called
DSHS, which tried to take her home. They realized Maria did not have a
home to return to.
Her father had left when she was a toddler, and her
mother had been deported to Mexico five years earlier, according to
Maria's DSHS records. Maria had lived with an adult sister, but the
sister no longer wanted to parent her, and the state stepped in.
Maria ran away her first day in foster care. She ran a
month later, after her first court hearing. She ran so many times her
DSHS social workers � five in all over the next three years � had
trouble finding new foster homes willing to take on her troubles.
That problem is endemic. Just two of DSHS' 6,000
foster homes cater solely to adolescents, and the agency has slashed its
budget for group homes that specialize in tough cases such as Maria's.
In an interview earlier this month, Maria, round-faced
and shy, said she regrets her street life. She said she smoked pot, then
tried meth, and was shot at by a rival gang during one run.
"I would run away when things got hard, to be with my
friends," said Maria, who asked that her last name not be used. "I
wanted to go see my sister, but my social worker wouldn't let me, so I
Her public defender, Sonia Rodriguez, suspected Maria
was mentally ill and asked DSHS to give her a psychological evaluation.
According to her records, that wasn't done until April 2004, after Maria
had been given the 30- and 60-day terms in jail.
The evaluation, which found that Maria had a psychotic
disorder, came only after she had a breakdown in jail, when she said she
heard voices and saw shadows creeping across her cell. Although she
eventually was treated with medication and counseling, Maria said she
still hears the voices and sleeps with the light on to ward off the
"All that time in jail didn't do anything for Maria.
It just exacerbated her mental-health problems," Rodriguez said. "I
think [DSHS] asked for these contempt sanctions because they didn't have
anything else to do with her."
Accusation of neglect
Inouye stopped levying inherent-contempt sanctions
after Rodriguez appealed his orders last year.
If his intent was to give DSHS time to better help the
girls, Maria's court-appointed advocate said last year, the agency did
not use the time wisely.
"We've seen her go downhill since she first came into
the system," said Lauri Leaverton, according to a transcript of a
hearing last June. "And from the very beginning there's been a lack of
mental-health services that the court has been asking for and we've all
been asking for ... I believe that, that amounts to neglect by the
Inouye said Maria's "poor choices" made it harder for
DSHS to help her, but said, "the end result is just unacceptable here,
that we've got a child with this kind of acting out."
In an interview this month, Maria said a power
stronger than inherent contempt is the only thing that could coerce good
"When I was on the run, my family wouldn't have
anything to do with me," she said. "When I'm where I am supposed to be,
I get visits with my sisters."
Maria, now on her ninth foster-care placement, has not
run in more than a year.
26 November 2005