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 promise."

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 each year.

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 contempt.

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 care run.

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 foster homes.

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 foster care.

"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 prior orders.

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 left."

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 shadows.

"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 department."

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 behavior.

"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.

Jonathan Martin
26 November 2005



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