The Juvenile Law Reader

January 10, 2004

Volume 2, Issue 1 The Juvenile Law Reader

HUNDREDS OF JUVENILE BILLS LIKELY IN 2005 OREGON LEGISLATIVE SESSION!

As in recent legislative ses- available on the Oregon improvement bills to the sions, it is expected that there Legislature website: 2005 legislature. More infor- Inside this issue: will be hundreds of bills that http://www.leg.state.or.us, mation about OLC bills is Research in Brief 2 relate to children, adolescents then click on “Committees available their website at: and families submitted to the http://www.wilamette.edu/wucl/or Military Eligibility 3 and Committee Agendas Local CLE’s 2005 Legislature. Fortunately Online.” To view bills, click egonlawcommission/ the majority of these will never on “Bills/Laws.“ • Juvenile Fitness to Pro- Case law Updates 4 see the light of day, so to ceed - LC 1141 Bills that are pre-session speak, because they will not Like an adult criminal defen- Conferences 5 filed by groups like the Ore- ABA Guide for Parents’ get past the committees they dant, a youth in a gon Law Commission also Attorneys are assigned to. delinquency proceeding has a likely to get hearings and be constitutional right to raise Immigration Changes? 5 The challenge to advocates seriously considered by the the issue of fitness to pro- Deadline for Relief from 6 and attorneys wishing to legislatures, as are bills ceed and to stand trial before Sex Offender monitor bills that may affect coming from government he or she can be adjudicated Registration in juvenile court. The Ore- their clients is to figure out agencies. The following are gon Juvenile Code, however, Foster Care Payments vs. 6 which bills may actually be descriptions of some of Cost of Raising a Child is silent on the subject of seriously considered. There these bills. fitness. No procedure is set Book Review 7 is really no easy way to do OREGON LAW forth in the Code for the de- this. COMMISION termination of fitness, and no Principles for Delin- 8 options for the court are quency Representation One approach is to monitor The Juvenile Code Revi- sion Workgroup of the Ore- specified for when a youth is bills that get assigned commit- Child Welfare and 9 gon Law Commission is found Mental Health tee hearings. Access to com- submitting several law (Continued on page 10) mittee schedules and bills is

METH ADDICTION IN OREGON IS GETTING YOUNGER “Oregon treats more people for On December 5, 2004, the have increased by 57% for Treatment providers are meth addiction per Oregonian reported on the girls. For many juvenile meth struggling to implement treat- capita than any startling increase in metham- users, the habit begins in mid- ment and prevention strategies other state in the phetamine use among children. dle school. Meth now has sur- that will work with juveniles. country, but experts didn’t foresee According to the article, last passed alcohol as the second See the story at: heavy use emerging year, more than 1700 children most-treated drug addiction http://oregonlive.com/search/in among young teens.” were treated for meth abuse in (after marijuana) in programs dex.ssf?base/news/110216558 - The Oregonian, 12/5/04 Oregon. Treatment admissions for children under 17. 1269170.xml?oregonian?lcps.

Volume 2, Issue 1 Page 1 Juvenile Law Reader is published by Juvenile Rights RESEARCH IN BRIEF Project, Inc. and Edited by Julie H. McFarlane functional brain damage, growth defi- OJJDP RELEASES REPORT ciency and unique facial features. EXAMINING ORIGINS OF Children with FAS and FAE often have JUVENILE CRIME problems with learning, memory, attention and problem solving, as well BOARD OF DIRECTORS: OJJDP announces the availability of the latest edition of its journal, as physical disabilities. “These two Mike Chewning, Pediatric Nurse Practitioner "Juvenile Justice." This 35-page jour- positive factors, living in a stable, nur- Legacy Health Systems turing environment and having an FAS nal focuses on research that as- Cameron "Cam" J. Dardis, J.D., Pacific Real or FAE diagnosis at an early age, are Estate Management Group sesses how and why children be- Kendra L. Decious, Controller, KinderCare - now documented for the first time as come delinquent. The issue's lead Vice President having a strong influence on what was article examines the findings and Susan Fischer, Co-Owner: Simon, Toney & previously assumed by many people Fischer - President policy implications of OJJDP's Pro- to be an unchangeable situation.” Scott Lee, Attorney at Law- Secretary gram of Research on the Causes and Eve Logsdon, Counsel, Hollywood Entertain- [From: CHILD LAW PRACTICE, Vol. Correlates of Delinquency, the larg- ment 23 No. 10, December 2004 at p. 167] Todd D. Massinger, CPA, Hoffman, Stewart est, most comprehensive investiga- and Schmidt, P.C.– Treasurer tion of the causes and correlates of Editor’s Note: While FAS is currently Jules Michel - Retired delinquency undertaken to date. A recognized as a medical diagnosis in Graham McReynolds - Executive Director, standard medical and psychiatric diag- National Multiple Sclerosis Society – Oregon second feature article demonstrates Chapter how such longitudinal research con- nostic manuals, FAE is not yet recog-

tributes to crafting a strategic re- nized in these manuals, making early STAFF diagnosis more unlikely. Janet L. Miller - Executive Director sponse to youth gang involvement. "Juvenile Justice," September 2004, Staff Attorneys: ADULT PRISONS HARDEN TEENS Brian V. Baker (NCJ 203555) is available online Cynthia Brooks http://ojjdp.ncjrs.org/publications/Pu A study conducted by the Arizona Peter Ellingson bAbstract.asp?pubi=11800 . Republic examined the outcomes of Meyer Goldstein their decade old law that made it eas- Julie Goss ier to send juveniles to adult prison. Lynn Haxton NEW STUDY SHOWS THERE IS Mary Kane Today the state is churning out a Lisa Ann Kay HOPE FOR NORMAL LIVES FOR tougher class of teenage criminals Emily Kropf CHILDREN WITH FETAL ALCO- who are hitting the streets young and Julie H. McFarlane HOL SYNDROME AND EFFECTS Jennifer McGowan angry. The study showed that: Kris Paustenbach Research done at the University of • Non-violent juveniles are more Elizabeth J. Sher Washington, shows that people diag- likely than violent ones to come Angela Sherbo nosed with either fetal alcohol syn- back to prison for committing a Pat Sheridan-Walker drome (FAS) or fetal alcohol effect Stuart S. Spring new violent crime within 3 years Tawnya Stiles-Johnson (FAE) are more likely to escape of release. Kathryn Underhill negative social and relationship out- • The average non-violent juvenile comes if they are diagnosed early in Legal Assistants: life and raised in a stable and nurtur- imprisoned as an adult serves 32 DeWayne Charley ing environment. months in prison, twice as long as Claire Dizon the national average for non- Anne Funk FAS is characterized by structural or violent offenders. Lisa Jacob Gretchen Taylor-Jenks • The state spends nearly $150/day Tessa Walker per juvenile inmate - three times Mark S. McKechnie - Social Worker the cost for an adult. For about a Jeffrey M. Jenks - Operations Manager Jesse Jordan – Office Manager dollar a day more, Missouri’s Divi- Carma Watson – Case Manager sion of Youth Services has taken Justin Bowes - Investigator many juveniles convicted as adults Amy Miller - HelpLine Coordinator out of the state prison and placed Mary Skjelset - HelpLine Coordinator Clarissa Youse – File Clerk them in a secure, home-like set- Lisa Warner - Admin. Assistant ting. From BREVITY at: http://training.ncjfcj.org/transfer.htm

Page 2 THE JUVENILE LAW READER

The Effect of Delinquency Adjudications on Military Eligibility

By Meyer Goldstein, Americorps members. They have each set up probation or alternative community Attorney thresholds based on grading or scaling service will also not change the mili- Records of juvenile adjudications the number and seriousness of of- tary’s view of the underlying criminal are generally shielded as confiden- fenses. Anyone with a record of delin- activity. The military takes the view tial. Military authorities may have quency adjudication seeking entry to that acts which demonstrate or ac- access to those records, however, any of the services would have to ex- knowledge rehabilitation do not and juvenile adjudications may im- amine the rules specific to the branch change the fact there was an initial pair a person’s ability to join the in which they were interested. adjudication of a criminal act. military. The military considers any- It is important to understand that Placement in pre-trial intervention or one with a significant criminal re- juvenile adjudications have the same diversion programs is also viewed as cord to be “morally disqualified.” effect on eligibility as adult convictions equivalent to a conviction. Essentially, Anyone with a juvenile adjudica- in this context. The military services any court ordered penalty, confine- tion should be aware that it may have access to juvenile records and ment, restriction or placement is impair their ability to join the mili- will consider them in evaluating a per- equivalent to a conviction. tary. However, an adjudication that son’s eligibility. Juvenile adjudications It is possible for a person with a a child is a ward of the court be- are considered regardless of whether criminal or juvenile adjudication record cause of abuse, neglect or depend- the person was sentenced to confine- to obtain a waiver of “morals disquali- ency will not impair a person’s eligi- ment, probation or suspended sen- fication” which will allow the person to tence. It is also irrelevant whether the bility for military service. (Continued on adjudication was based on a judge’s The military branches each have p. 4) finding or a plea. standards establishing under what conditions they will admit a person A record of this type will also be con- with some sort of criminal record. sidered even if there was subsequent The services are concerned that action by the court to expunge, seal or applicants with criminal back- set aside the original juvenile adjudi- grounds may be anti-social, have cation. These subsequent proceedings discipline issues or may constitute a are not considered to change the fact bad influence on other service that the juvenile was found to have committed a criminal act. Completing LOCAL WORKSHOPS, TRAINING & SUMMITS

The PACE Institute, which focuses Alternatives to Sexual Abuse will be Clackamas County Sheriff’s Office, on improving organizations and presenting “New Perspectives on the Child Abuse Team, and the Do- systems for girls at risk of entering Adolescent Offenders and Innova- mestic Violence Enhanced Response or involved in the juvenile justice tions in the Treatment of Adult Team of Oregon City. The Summit system, will present one of four Offenders” by Gene Abel, M.D. The features many well known national regional trainings in Portland, OR., program will be presented on Friday, and local speakers. For more infor- February 1 & 2, 2005. The inten- February 18, 2005 from 8:00 a.m. - mation contact: sive workshop, Gender & Trauma 4:45 p.m. at the Holiday Inn — www.co.clackamas.or.us/sheriff/ . Responsive Programming for Portland Airport. For more information SAVE THE DATE: Girls: A Holistic Approach, is contact Keith I. Linn at: limited to 30 participants. The **OCDLA— Spring Juvenile Law [email protected] . workshop will be presented at the Conference, April 15 –16, 2005, at Portland Hilton. For registration CHILD ABUSE SUMMIT & FAMILY the Hallmark Inn. VIOLENCE CONFERENCE - April 27 - and information visit: **Juvenile Law Section Spring 29, 2005 at the Double Tree Hotel - www.pacecenter.org/institute . Seminar, March 11, 2005, at the Jantzen Beach, Portland. This is the McGovern and Associates and Western Forestry Center. Seventh Annual Summit hosted by the Volume 2, Issue 1 Page 3 CASELAW UPDATES

State ex rel Juv. Dept. v. 419A.004(33) were to be applied pro- Baltimore City Dep’t of Soc. Servs. V. Strothers spectively only. Applying this reason- Boukknight, 493 U.S. 549 (1990), The Court of Appeals has held ing, the Court found that under ORS which involved a mother held in con- that the 2001 amendments to ORS 419A.004(33) (1999), youth did not tempt for refusing to produce her 419A.004(33)(1999) were not in- qualify as a youth offender because he child for placement in foster care. In tended to apply retroactively. was only 11 years of age when he Boukknight, the mother’s contempt committed the acts, and the statute order was based on the refusal to In this case, Strothers appealed a required that he be 12 years of age. produce the child and thus the Fifth judgment by the juvenile court de- The Court resolved this case without Amendment did not protect the claring him to be within its jurisdic- reaching the constitutional question. mother from the contempt. By con- tion for committing acts that, if Order of commitment reversed; re- trast the mother in Ariel G. was committed by an adult, would con- manded for re-disposition; otherwise based on the mother’s failure to tes- stitute first-degree rape, ORS affirmed. Case No.: A117443 tify about her knowledge of the 163.375, and first-degree sexual http://www.publications.ojd.state.or.us child’s location. This purely testimo- abuse, ORS 163.427. Youth argued /A117443.htm nial communication fell within the that the juvenile court should have Fifth Amendment’s protections. applied ORS 419A.004(33) (1999) In re Ariel G. because he committed the acts be- The Court of Appeals of Maryland The Court also rejected the state’s fore the 2001 statutory amend- reversed a trial court ruling holding a argument that the child’s interests ments went into effect. The Court mother in criminal contempt for refus- transcends the Fifth Amendment found that in the absence of legisla- ing to answer questions about her al- privilege against self-incrimination, tive intent and because the amend- leged kidnapping of her son from his holding that protecting children in ments were substantive in nature, foster home. The Court distinguished state custody is important, but does the 2001 amendments to ORS the U.S. Supreme Court’s decision in not warrant abandoning the constitu- tion. The Fifth Amendment privilege against self-incrimination does not MILITARY (Continued from p. 3) depend on what is at stake for the courts or society, but what is at stake enter the military. The person is son with a history of drug or alcohol considered unqualified for military dependency or addiction, for traffick- for the defendant. In re Ariel G., service until they obtain the waiver ing in drugs or for convictions of any 2004 WL 2214059(Md.) and they bear the burden of prov- drug offense (except possession of ing entitlement to a waiver. small amounts of marijuana). A per- Whether a person can receive son who tests positive at their intake such a waiver depends on factors is also ineligible for waiver. such as the seriousness of the A military applicant with a juvenile criminal record, even if it was incurred crime, the number of convictions or record should also understand their as a juvenile. Applicants must also adjudications, the age at the time duty to report that record. While the fully disclose this information in their the crime was committed, the sen- record may not be found initially, it submissions. tence imposed and the person’s could be uncovered during a later se- background as a whole. There are curity check. A person who fails to crimes for which no waiver can be reveal their record or who misrepre- “A potential military appli- obtained. Also, a waiver normally sents it in applying to the military can cant with a juvenile record will not be issued to someone cur- be charged with a number of crimes rently on probation or parole. and dismissed from the military. It is should also understand There are also special require- therefore essential that a person ap- their duty to report that ments for drug-related offenses. A plying for admission to the military record. “ waiver will not be granted for a per- know the details of their records.

Page 4 THE JUVENILE LAW READER

NATIONAL CONFERENCES

Child Welfare League of Amer- Children’s (NACC) and NITA’s annual ily Court Judges and the National Dis- ica—2005 Juvenile Justice National trial skills training. “Presenting Evi- trict Attorneys’ Association will be held Symposium, Joining Forces for Bet- dence in Cases Involving Children” March 20 - 23, 2005, in Orlando, Flor- ter Outcomes, will focus on integra- will provide hands-on, experiential trial ida, at the Omni Orlando Resort at tion and coordination of Juvenile skills including: Case Analysis and Champions Gate. Topics will include: Justice and Child Welfare as an im- Organization; Direct & Cross Examina- Mental Health and Juvenile Justice; portant aspect of working to better tion Techniques; Expert Witness Ex- Effective Juvenile Drug Courts; Meth serve our nation’s children. The amination; Evidentiary Foundations; Labs; Open Hearings in Child Protec- symposium will be held June 1—3, Introduction and Use of Exhibits, and tion Cases; Ethics in Problem-Solving 2005, at the Renaissance Eden Roc Handling Difficult Witnesses. For fur- Courts; Supervised Visitation in Do- Hotel in Miami, Florida. For more ther information contact NACC at mestic Violence Cases; Juvenile De- information or to submit a presen- www.NACCchildlaw.org . tention Reform in Rural Areas; Human tation proposal, contact CWLA at: National Association of Counsel Trafficking; They’re All the Same Kids: http://www.cwla.org/ for Children, 28th National Chil- Dependency to Delinquency; Gangs: confer- dren’s Law Conference, will be held A Call to Action; Where Have All the ences/2005jjsymposiumrfp.htm August 25 - 28, 2005, at the Renais- Juveniles Gone? Waiver to Adult The 10th Annual Rocky Moun- sance Hollywood Hotel in Los Angeles, Court; Case Law and Its Effect on tain Child Advocacy Training California. For more information go Crime Investigation; Disproportionate Institute will be held May 16 - 20, to: http://naccchildlaw.org/training/ Minority Confinement; and other Sig- 2005 at the National Institute for conference.html . nificant Delinquency, Family Violence, Trial Advocacy (NITA) National Edu- Child Welfare and Family Law Topics. The National Conference on Ju- cation Center in Denver. This is the For more information: http:// venile Justice, co-sponsored by the National Association of Counsel for www.ncjfcj.org/dept/conference/ . National Council of Juvenile and Fam-

POPULAR ABA GUIDE FOR PARENTS’ ATTORNEYS AVAILABLE ONLINE

The National Child Welfare Resource Center on Legal and Judicial Issues has announced the availability online of their popular publication: “Representing Parents in Child Welfare Cases, A Basic Introduction for Attorneys,” by Diane Boyd Rauber, J.D., with Lisa A. Granik. This publication helps attorneys new to child protection cases understand their role as parents’ representative and advocate, and highlights other key resources on child welfare system generally. Go to: http://www.abanet.org/child/rclji/online/html and scroll down; the link is at the top of the “OTHER” section.

CONGRESS CONSIDERS IMMIGRATION LAW CHANGES FOR CHILDREN

Unaccompanied immigrant chil- ment-appointed counsel. Children would be appointed pro- dren frequently face harsh treat- Congress is attempting to address some bono counsel within a short period. ment, extended detention in unsuit- of these issues through the Unaccompa- Those with disabilities or special able facilities and are often de- nied Alien Child Protection Act of 2003. needs would be appointed a guard- prived of benefits to which they are This bill would require that age determi- ian ad litem. Training in juvenile entitled under immigration law. This nations be based on scientific, reliable immigration issues for members of is because legal provisions specifi- methods and grant the Office of Refugee the legal and judicial systems would cally focusing on assisting these Resettlement the authority to place be increased. children have not been established qualified children into proceedings to and they are not entitled to govern- obtain special immigrant juvenile status.

Volume 2, Issue 1 Page 5 PETITION FOR RELIEF FROM JUVENILE SEX OFFENDER REGISTRATION DEADLINE APPROACHES — January 1, 2006

A juvenile who has been adjudi- and whether the person continues to tors as whether the crime involved cated to be within the jurisdiction of pose a threat to the safety of the pub- force, the victim’s age and vulnerabil- the juvenile court on the basis of a lic. ORS 181.607(2). The standard of ity, and very importantly, the peti- finding of having committed an act proof is clear and convincing evidence. tioner’s post-adjudication conduct. that, if committed by an adult, ORS 181.607(2). ORS 181.607(3). The court may also would constitute a “sex crime” un- The timing of the filing of the peti- consider evidence not listed in the der ORS 181.594, is required to tion determines whether the petitioner statute. ORS 181.607(3). The State report to authorities and register as or the State bears the burden of is entitled to have a psycho-sexual a sex offender upon being released proof. The State bears the burden if evaluation of the petitioner. ORS from confinement. ORS 181.592, the petition is filed no more than three 181.607 (5) 181.594, 181.595, 181.596. Failure years after the juvenile court termi- The obvious approach to such a to report can be a misdemeanor or nates its jurisdiction over the peti- petition is to seek out evidence in the a felony. ORS 181.599. In general, tioner. ORS 181.607(2)(a). If the peti- record minimizing the seriousness of the registration requirement is per- tion is filed more than three, but not the crime and the harm to the victim. manent. ORS 181.595(3)(d). Life- later than five years after the juvenile Similarly, it will be important to pre- time registration is an onerous bur- court terminates jurisdiction, the peti- sent evidence the petitioner has ac- den for juvenile sex offenders and tioner bears the burden of proof. ORS knowledged responsibility for the one from which many wish to seek 181.607(2)(b). Individuals who were acts, complied with therapy and relief. terminated from juvenile court juris- treatment, and not committed addi- ORS 181.607 authorizes a person diction more than five years before tional violations. adjudicated as a sex offender while January 1, 2004, the effective date of Finally, it is important to remember a juvenile to petition the juvenile section 3, chapter 530, of the Oregon that if the court grants the petition, it court for relief from the registration Laws of 2003 have until January 1, is the petitioner’s responsibility to requirement. The petition for relief 2006 to file a petition for relief from send a certified copy of the court’s from the registration requirement registration. [2003 c.530 section 3]. order to the Department of State Po- must generally be filed no less than There is an additional filing fee in lice. ORS 181.607 (9). two years and no more than five these cases of $300. years after termination of juvenile The statute contains a long list of court jurisdiction. The issues to be evidence which the court may con- proved at the hearing are whether sider in rendering its decision. ORS or not the petitioner is rehabilitated 181.607(3). These include such fac-

THE COST OF RAISING A CHILD VS. FOSTER CARE PAYMENTS

The National Resource Center for • The average amount provided to foster parents to meet the needs of a Family Centered Practice has done nine-year -old child is $5,042 per year. a comparative analysis of foster But costs of caring for a child vary widely in different parts of the country. care payments and the cost of rais- The following chart shows USDA estimated monthly expenditures by age group ing a child in each of the states. for the Urban West as compared to Oregon monthly foster care payments. For Overall, foster care payments are more go to: http://www.cnpp.usda.gov/using2.html & http://NDAS.cwla.org less than the USDA cost of living figures for raising children. THE COST OF RAISING A CHILD vs. FOSTER CARE MAINTENANCE PAYMENTS • On a national level, the average cost of raising a nine-year old age age age child, excluding medical care 0 - 2 9 - 11 15 - 17 was $9,233 per year in 2002, Urban West - USDA est. according to the U.S. Depart- monthly expenditure $795 $812 $969 ment of Agriculture. Oregon monthly foster care payments $350 $364 $449

Page 6 THE JUVENILE LAW READER

BOOK REVIEW

Child Protection in America: fight than a woman. The traditional child abuse results from “corporal Past, Present, and Future explanation for this remarkably un- punishment” that goes too far, in- Oxford University Press equal treatment, of course, is that flicted by parents who believe they John E.B. Myer, Distinguished Pro- parents need to assault their kids in have a right to hit their kids. In the fessor and Scholar the name of discipline. In light of what name of discipline, but in the heat of University of the Pacific, McGeorge we know today about children and irrational anger, children suffer School of Law about discipline, I argue that there is bruises, lacerations, black eyes, frac- no greater justification for hitting chil- tures, burns, head injuries, and Professor Myer has compiled the dren than there was for hitting death. first comprehensive history of women. American efforts to protect children We have to change the mindset of from abuse and neglect. The book There is mounting evidence that hit- adults that it is okay to hit kids. It is begins in colonial times and pro- ting children has deleterious conse- no more “okay” to hit your child than gresses through the birth of the quences for some children. Recent it is to hit your spouse, your em- juvenile court to the creation of the studies have suggested that many ployee, or the guy standing next to child protection system we know harmful consequences flow from so- you at the bus stop. Outlawing today. The following is a con- called ‘ordinary’ physical punishment “corporal punishment” will begin the densed excerpt from the book: including: alcohol abuse, depression, long process of helping adults under- suicidal thoughts, behavioral prob- stand that hitting those we love is lems, low achievement, and future not acceptable. Banning “corporal Hitting Children Must Be Out- economic insecurity.1 In addition, cor- punishment” will reduce child abuse. lawed poral punishment in adolescence is If a husband's "right" to physically associated with a significant increased 1. Clifton P. Flynn, Regional Differences in chastise a wife seems barbaric, and probability of depressive symptoms as Spanking Experiences and Attitudes: A Com- was outlawed in the mid-nineteenth adults.2 In 1998, the American Acad- parison of Northeastern and Southern College Students, 11 Journal of Family Violence 59-80, century, why is a parent's “right” to emy of Pediatrics concluded that the at 59-60 (1996). physically chastise a child less so? negative consequences of spanking 2. Murray A. Straus & Glenda Kaufman Kan- One might answer: Because women outweigh any benefits, and urged pe- tor, Corporal Punishment of Adolescents by are adults with equal rights. True. diatricians to help parents find Parents: A Risk Factor in the Epidemiology of The law does not allow adults to “methods other than spanking in re- Depression, Suicide, Alcohol Abuse, Child Abuse, and Wife Beating, 29 Adolescence 543- assault each other. Then why is it sponse to undesirable behavior.” 561, at 550-551 (1994). acceptable to assault children? A Physical punishment is correlated The full excerpt is available at: child is smaller, more vulnerable to with child abuse. There is ample evi- http://www.mcgeorge.edu/newsande injury, and less capable of flight or dence that a great deal of physical vents/news/myers_corporal_punishm ent.htm . EARLY INTERVENTION NEWS “When government invests now, it puts Citing Dayton Leroy Rogers, Keith because of the a down payment on ensuring that out Hunter Jesperson and Ward Weaver abuse they en- most vulnerable children won’t become III, as examples of high-profile kill- dured. ers, who had been abused or ne- our most wanted adults” - Multnomah County glected as children, Oregon law en- Greater support forcement officials and prosecutors was requested for District Attorney Michael Schrunk called for federal funding for earlier Oregon’s Healthy intervention to curtail the cycle of Start Program, family violence. The law enforce- which began 10 years ago with the goal come our most wanted adults,” said ment officials and prosecutors spoke of providing in-home parent coaching Multnomah County District Attorney in support of a study released by services to all new moms. Because of Michael Schrunk. “We have to be the anti-crime organization “Fight budget cuts, the program is reaching hard-nosed and prosecute these Crime: Invest in Kids” , which pre- about half of all first-time mothers in cases when they occur. But we see dicts that as many as 370 of the the state. this over decades. We see what 9,228 children in Oregon, who were “When government invests now, it the result of neglect and lack of victims of abuse or neglect in 2002 puts a down payment on ensuring that resources do.” will become violent criminals our most vulnerable children won’t be- - The Oregonian, December 16, 2004

Volume 2, Issue 1 Page 7 Ten Core Principles for Quality

Juvenile Delinquency Representation

By Julie Goss, Americorps Attor- effectively represent delinquent 4. Indigent Defense Utilizes Ex- ney youth. pert and Ancillary Services to Pro- The American Council of Chief De- ACCD and NJDC also determined that vide Quality Juvenile Defense Ser- fenders (ACCD) and the National Indigent Defense should pay special vices. Juvenile Defender Center (NJDC) attention to representation of youth Indigent Defense supports requests recently worked together to pro- with special concerns, such as race, for essential expert services and litiga- duce ten core principles for quality mental health issues, gender and tion support to ensure high quality rep- juvenile delinquency representation sexual orientation. These additional resentation. These services include to serve as a national standard for factors will present unique concerns evaluation and testimony by mental state run indigent defense delivery and issues relating the attorney’s health professionals, education special- systems (Indigent Defense). Staff ability to effectively represent and ists, forensic evidence examiners, DNA of Oregon’s Public Defense Services adequately advocate for the special experts, accident reconstruction ex- Commission is currently reviewing needs of the youth. perts, interpreters, court reporters, so- the principles. cial workers, etc. ACCD and NJDC initially developed 5. Indigent Defense Supervises these principles to assist Indigent Attorneys and Staff and Monitors Defense systems in adhering to the Work and Caseloads. U.S. Supreme Court decision of In 1. Indigent Defense Upholds Caseloads will be monitored and re- Re: Gault. This decision clarified Juveniles’ Rights to Counsel viewed to ensure quality, efficient rep- the requirements of a lawyer’s prin- Throughout the Delinquency resentation. Caseloads can be adjusted cipal duty to his or her juvenile de- Process and Recognizes the due to case complexity or available re- linquency clients as representing Need for Zealous Representation sources. their legitimate interests in a “full to Protect Children. 6. Indigent Defense Supervises and conscientious” manner as op- Representation for youth is impor- and Systematically Reviews Juve- posed to representing the best in- tant, and the Indigent Defense nile Defense Team staff for Quality terest of the child. These Principles should work to ensure that the youth According to National, State, also offer increased guidance for does not waive his or her right to and/or Local Performance Guide- the leaders of Indigent Defense as counsel. Additionally, Indigent De- lines or Standards. to the roles of attorneys in provid- fense should attempt to have an at- ing full, complete, and quality rep- Indigent Defense adopts guidelines to torney appointed to represent the resentation of children and adoles- ensure its vision is consistent with na- child at the earliest stage of the pro- cents. tional, state, and local standards. It ceedings and continue throughout also provides coaching and review for ACCD and NJDC determined that the life of the delinquency process. attorneys and staff. Indigent Defense providers should 2. Indigent Defense Recognizes reaffirm the fundamental role of the 7. Indigent Defense Provides and that Legal Representation of juvenile court as being “a fair and Supports Comprehensive, Ongoing Children is a Specialized Area of reliable forum of adjudication” and Training and Education for All At- the Law. to ensure that it continues to pro- torneys and Support Staff In- vide support, resources and treat- Representing youth in delinquency volved in the Representation of ment to ensure the rehabilitation of proceedings is a highly specialized Children. the children determined to be delin- area of representation that requires Comprehensive training and education quent. dedicated, experienced attorneys is provided pertaining to all levels of who provide quality, comprehensive The representation of youth as a the delinquency process including de- services. specialty practice should be a main tention advocacy, litigation, and appel- concern for Indigent Defense. 3. Indigent Defense Supports late advocacy, as well as other unique Youth representation should not be Quality Juvenile Delinquency areas of the law. considered an entry level or training Representation Through Person- 8. Indigent Defense Has an Obli- position. Rather, it should be nel and Resource Parity. gation to Present Independent viewed as requiring experienced, Specialized representation is en- Treatment and Disposition Alter- highly trained and educated attor- couraged and a professional work natives to the Court. neys who understand that clients’ environment is provided including Counsel has an obligation to seek out differing maturity levels, cognitive adequate operational resources and and present to the court alternative abilities, and stages of child devel- equality in budgeting and allocation (Continued on page 9.) opment contribute to their ability to of equipment and resources. Page 8 THE JUVENILE LAW READER

Child Welfare Practice and Mental Health System Changes

By Mark S. McKechnie changes. services that can serve children in There is a substantial overlap be- Child welfare uses the majority of day their homes, foster homes, schools tween the children and families and residential treatment slots for chil- and other, more natural community served by the child welfare system dren who are wards of the court and settings. Once local mental health and the Oregon Health Plan mental for voluntary cases. Roughly two- systems develop these more inten- health system. This should come thirds of residential beds are typically sive, but less restrictive, mental as no surprise since many of the occupied by children served by DHS. health services, case workers will same factors and events which pre- Case workers have had direct access to have access to resources that can cipitate child protective services these slots by sending referrals to day help prevent the all-too-frequent involvement also contribute to the and residential treatment providers. foster care disruptions experienced development of mental and emo- Unfortunately, some children have by children with emotional and be- tional disorders in children. been referred to these more restrictive havioral problems. Children in foster care due to school and residential placements with- The state Office of Mental Health abuse and neglect suffer rates of out first receiving outpatient services and Addictions Services (OMHAS) mental and emotional disorders at locally or because those services were will require all MHOs to use a stan- rates three to ten times higher than unavailable or inadequate. dardized assessment tool to more their peers.1 The child welfare sys- Starting July 1, 2005, county and re- accurately and consistently match tem has also served families, gional Mental Health Organizations the right level of services to the through voluntary custody and vol- (MHOs) will be given the majority of individual needs of a child and their untary placement agreements, who the funding for day and residential family. The instrument, the Child have children with severe mental treatment services. They will still pay and Adolescent Service Intensity and emotional disorders for which for these traditional intensive and tra- Instrument (CASII), will help iden- they have no other avenue to ob- ditional outpatient services. But now tify the children around the state tain needed services. they will also have the opportunity, who require more intensive and more coordinated services. Given this overlap, the changes in and indeed the mandate, to develop the children’s mental health system new services to fill the gaps in be- Local mental health providers or to be phased in this year will sub- tween. MHOs will be expected to apply the stantially impact child welfare prac- While case workers will lose the di- instrument when a child is sus- tice. These changes can greatly rect access they have had to day and pected of having symptoms that benefit the children and families residential treatment slots (when there necessitate more intensive services. served by both systems if child wel- are openings, of course), they should (Continued on p. 10) fare practice adapts to these be gaining access to a greater array of

TEN PRINCIPLES (Continued from p. 8) ASK THE SOCIAL WORKER treatments and placements that can 10. Indigent Defense Must Pro- best serve the client’s unique inter- mote Fairness and Equity for ests. Children. 9. Indigent Defense Advocates Counsel should ensure they work to for the Educational Needs of preserve the client’s constitutional Tired of reading about mental Clients. rights and the fair, non-partial, and health? Or want to know Education is extremely important rehabilitative aspect of the juvenile more? Pose questions or sug- court system. They should also work to youth clients. Counsel should gest topics. Contact Mark advocate, personally, or otherwise through the community and legisla- for the clients’ individual educa- tive process to advocate for improve- McKechnie, M.S.W., at tional needs. Counsel should also ments and reform on behalf of their [email protected] and “Ask the be aware of the behavioral manifes- clients. Social Worker.” tations and special needs of clients ENDNOTES: with special education require- 1. 387 U.S. 1 (1967) ments. 2. Ten Core Principles, footnote 2.

Volume 2, Issue 1 Page 9 CHILD WELFARE (Continued from p. 9)

If they don’t apply the CASII on gible child. Presumably, children substantial cultural change involved their own, case workers, parents referred for day or residential treat- with it. Advocates for children im- and foster parents have the right to ment would be screened by such pacted by these systems can play an request it. committees in most instances. important role in encouraging this cultural shift by helping to ensure Children who reach a certain score The goal of these efforts will be to on the CASII will be eligible for a that local systems receive complete provide more intensive services in and accurate information about new mental health care coordinator who the community for children so that will work with the parent or guard- services and the right of children to disruptions to their school or living receive them, by encouraging child ian, as well as other systems work- placements will be minimized. The ing with the child. The care coordi- welfare case workers, foster parents child welfare, education and mental and others to take advantage of new nator will be responsible for devel- health systems all have legal and oping a plan that integrates not service options and by raising the policy mandates to deliver services expectations that children will be able only the traditional mental health in the least restrictive setting. Fund- treatment plan, but also other case to receive services without having ing schemes have historically tied their lives uprooted. plans, including the child welfare restrictiveness to intensity, and pro- permanency plan, the Individualized fessionals who work in these sys- ENDNOTES Education Program (IEP) and oth- tems have become accustomed to 1. Harman, J.S., Childs, G.E. and ers. the status quo. Under the children’s Kelleher, K.J. (2000). Mental health MHOs will also be required to con- mental health system change, fund- care utilization and expenditures vene local or regional case planning ing and policy changes will make it by children in foster care. Archives of committees that include local inter- more possible to deliver intensive Pediatric and Adolescent Medicine, v. disciplinary and family involvement services in less restrictive settings. 154, pp. 1114-1117. to provide consultation and direc- While most professionals agree tion to care coordinators and the with the goals of the system change, family teams planning for each eli- we should not underestimate the

JUVENILE LEGISLATION (Continued from page 1)

unfit. As a result, courts are left to putative fathers are entitled to in pro- • Placement Preference - LC 190 fashion an outcome for the youth ceedings, developing legislation that This bill makes minor changes to with no guidance in the law. This both accurately reflects constitutional ORS 419B.192 changing those who bill gives clear options to help en- requirements and is consistent with have a placement preference for per- sure that both the best interests of other provisions of the ORS, adminis- sons with a “child-parent” relationship the youth and the best interests of trative rules, and current practices re- to a “caregiver” relationship. The bill victims and the community are pro- lating to parents, fathers, and pater- also clarifies the time line for the exis- tected. nity. tence of the caregiver relationship in • Putative Father - SB 234 • Guardian Ad Litem for Mentally Ill ORS 419B.116. Biological fathers who have dem- Parents SB 230 • Court Records - SB 231 onstrated a commitment to the re- The ORS is unclear on the role of This bill provides that when materi- sponsibilities of parenthood have guardians ad litem in juvenile depend- als are relied upon or considered by certain constitutional rights regard- ency and termination of parental rights the juvenile court in a case that can ing notice in juvenile court proceed- proceedings, including, when a guard- result in an appeal, the court must ings involving their children. Pres- ian ad litem should be appointed, make a list of the reports of materials ently, the ORS does not reflect the whether guardians ad litem can de- and in the event of an appeal, these constitutional standard, and there mand a trial, whether they can direct materials must be made part of the are inconsistencies throughout the parents counsel and whether they can record on appeal. The bill also pro- statutes. There are particular incon- relinquish parental rights on behalf of vides that the transcript of the juve- sistencies regarding notice require- the parent. This Sub-work Group has nile court proceeding is part of the ments in domestic relations and prepared legislation that addresses record of the case, and establishes juvenile court proceedings. A Law these and other issues in these difficult access and disclosure requirements Commission sub-work group has cases. for transcripts and other records. studied and defined the rights that

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JUVENILE LEGISLATION (Continued from page 10)

• Mental Disease or Defect Defense Clarifies the definition of damage to a ing involving a sexual offense from - SB 232 victim’s property as the market value copying or disseminating any evi- This bill will codify the defense of at the time and place of the crime; 3) dence of a sexually explicit nature. mental disease and defect in juvenile Clarifies the definition of “direct vic- Prevents release of information delinquency proceedings. The bill also tims” and “third party victims”; 4) Al- about the sexual conduct of the establishes dispositional options for lows restitution to insurance compa- victim. juveniles who successfully use this nies who have paid part of the victim’s loss. Amends ORS 137.103(2)(4) and affirmative defense and have serious JUVENILE RIGHTS PROJECT mental conditions or present a sub- 419C.450. JRP submitted a proposed bill that stantial danger to others. The bill es- • Expunction Deferred until Restitu- will be titled “Educational Success tablishes a juvenile panel of the Psy- tion Paid - HB 2231 chiatric Security Review Board. for All Foster Children Act.” This bill Defers the expunction of adult con- is intended to address the educa- • OYA Planning - SB 233 victions and juvenile adjudications tional deficits which foster children This bill amends ORS 419C.486 and until a restitution judgment is satisfied suffer when they change schools as in the action that resulted in the resti- removes the requirement that OYA a result of a change in foster place- tution. planning for youth focus on reunifica- ment. The bill provides measures tion of the family and bear a rational • Restitution Civil Judgments - HB such as enabling children to stay in relationship to the jurisdictional find- 2233 their original schools after a place- ings. This provision was inappropri- Provides for crime victims to obtain ment change, appointing educa- ately carried over when the depend- civil judgments so they can collect tional surrogates earlier and provid- ency and delinquency codes were criminal restitution money judgments ing transportation for children to split. The proposed standard will re- on their own and extends the expira- their original schools after they quire that case planning “serve the tion date of criminal and civil money move. purposed of and is consistent with the judgments to 50 years. principles of ORS 419C.001”. SB 233 Another bill submitted by Oregon • Parental Liability - HB 2229 makes other similar “housekeeping” Advocacy Center and JRP would changes to ORS 419A. Provides for parental financial reform a Child and Family System of sponsibility for economic loss caused Care Task Force to establish an in-

by acts of children under 16 that tegrated children’s mental health DEPARTMENT OF JUSTICE would be crimes if committed by fund. This fund would pool private The Department of Justice has pre- adults. and public, local, state and federal session filed a number of bills. • Sexual Assault - SB 198 resources. Integrated funds would then follow clients, facilitate procur- • Crime Victim Liens - HB 2222 Provides for a friend or advocate of ing greater federal financial sup- This bill allows the Crime Victims’ sexual assault victim to be a sexual Assistance Section to take a lien assault victim personal representative port, increase the efficiency of re- against a crime victim’s civil recovery and to accompany victims to medical source use, minimize incentives for from an assailant or liable third party. facilities and legal proceedings. cost and risk shifting and increase incentives for earlier identification • Restitution - HB 2230 • Copying Sexually Explicit Materials and intervention for children with - SB 199 This bill clarifies current restitution significant emotional disorders. law: 1) Defines the scope of damages Allows for protective orders prohibit- Both bills are currently being for restitution as “economic loss”; 2) ing a party or attorney to a proceed- drafted by Legislative Counsel.

Volume 2, Issue 1 Page 11

The Juvenile Rights Project is pleased to partner with the Com- mission on Women’s Americorps Program to provide expanded services through the JRP Helpline. This year JRP is fortunate to have two Americorps Attorney volun- teers, who are proving to be a ma- Meyer Goldstein graduated from the Law School of the University of California at Davis. In his legal career Julie Goss began working at the Juvenile Rights Pro- he has clerked for the Court of Appeals of Alaska in ject in October, 2004 as an Americorps Member. She Anchorage as well as the Third District Court of Ap- has always had an interest and passion for children and peals in Sacramento, California. He practiced with a families and found that the “giving back to the commu- small private firm in the areas of Labor, Employment nity” spirit of Americorps meshed nicely with the Juvenile and Indian law and also worked as a staff attorney on Rights Project’s mission and focus. Julie recently gradu- regulatory matters for the California Energy Commis- ated from Willamette University College of Law in May of sion. As a break from his legal career, Meyer worked 2004 and passed the Oregon State Bar in September, for a number of years as a commercial airline pilot in 2004. She also attended Willamette University as an Cleveland, Monterey, Denver, and ultimately Portland. undergraduate. She has worked at the District Attor- Having settled in Portland and desiring to turn his legal ney’s Office in the Support Enforcement Division and as a skills to a career of community service, he returned to legal assistant in a private family law firm in San Jose, legal work as an AmeriCorps member serving at the California for two years before attending law school. Juvenile Rights Project. He loves Portland for all that it Julie finds the work, which is generated through the Ju- offers and takes advantage of many of the activities venile Rights Project’s Helpline, to be interesting, inspir- that make Portland such a rich and rewarding place to ing, and very educational. She has enjoyed getting to live, including windsurfing, cross-country skiing, hiking, know the Juvenile court system and being able to inter- visits to the beach, bicycling, and the uniquely diverse act with teenage clients. array of restaurants and live music and theater venues.

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