ETHICAL CONSIDERATIONS FOR CHILDREN WITH SPECIAL NEEDS IN THE JUVENILE JUSTICE SYSTEM

Karen Dalglish Seal and Matthew Finch, Attorneys

            The attorney represents the client—no matter who is paying.{C}[1] If that client is a juvenile then the child is the client. There are many rules that determine the behavior of attorneys.  Those rules are located in Texas Disciplinary Rules of Professional Conduct.  The ones that apply to the attorneys’ interactions with a child in the juvenile system are:

Rule 1.01 (a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence. . . .[2]

Rule 1.02. Scope and Objectives of Representation (a) . . . a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.[3]

g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.[4]

Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.[5]

Rule 1.05. Confidentiality of Information.   (b) … a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm.[6]

                These ethical rules and other unwritten considerations present challenging issues when working with children with disabilities in the Juvenile Justice System.  The first challenge is created by the number of children with either intellectual disabilities (mental retardation) or mental health issues that move through the juvenile justice system.  The percentage of students with special needs is “more than 75%” . . .” with about 25% of our children having notable mental health issues.”[7]  “Boys represent more than half of the children presenting” with mental health issues.”[8]  In the Texas Juvenile Justice System during 2016, 28% of the new commitments have been diagnosed with special education issues.  In 2015, the percentage was 30%.[9]  Those figures do not include the children who have not been diagnosed. Nationally, the percentage of young people with mental health issues committed to juvenile justice systems is alarming.  Another source states that as many as 70 percent of youth in the system are affected with a mental disorder, and one in five suffer from a mental illness so severe as to impair their ability to function as a young person and grow into a responsible adult.[10]  The most useful reference tool when becoming familiar with mental health issues is the DSM V (the Diagnostic and Statistical Manual of Mental Disorders, 5^th Revision). 

            The second and most important challenge for an attorney is developing the ability to think creatively. Lawyers who practice in the field of juvenile law need to be aware of options and opportunities to assist young people with mental health needs especially given the rehabilitative/restorative mission of the Texas Juvenile Justice Department and the Juvenile Courts.  Generally accepted procedures may seem appropriate but are seldom in the interest of children with mental health issues who may not be good candidates for deferred adjudication or probation of any type.

Third, the most important challenge is finding a balance between justice and punishment that keeps the juvenile out of the school to jail pipeline. 

Finally, another challenge to the practice of juvenile law is understanding and applying the law as it impacts juveniles with mental health/mental retardation issues.  Chapter 55 of the Texas Family Code (Chapter 55) outlines the means to challenge the mental health status of juveniles in the system.  Since the percentage of juveniles with mental health/mental retardation issues is so high, understanding Chapter 55 is essential to the practice of law in this area.

            Chapter 55 is divided into three areas—Chapters B, C and D.  The proceedings under Chapters B and C are similar in that they focus on the present mental state of the young person as opposed to Chapter D that focuses on the mental state of the child at the time of the alleged offense.[11]  Chapters C and D are similar to competency and sanity proceedings in criminal court. However, Chapter B has no mirror image nor anything somewhat similar in the adult system.  What is required under Chapter B is “that the child has a mental illness and meets the commitment criteria of the Texas Health and Safety Code, Title 7, Subchapter C.”[12]

CHILD WITH MENTAL ILLNESS, CHAPTER 55, CHAPTER B § 55.11 – § 55.19

            Either the defense attorney or the prosecutor may raise the issue of the mental health of the child and file a motion asking for an assessment of the child.[13]   The juvenile court may consider information from the attorney(s), any relevant documentation, witness testimony and/or the Court’s own observations during a probable cause hearing.{C}[14]{C}  If the Court finds that there is probable cause, then all proceedings are stayed pending the results of an examination ordered under §51.20 which must include an expert’s opinion on whether or not the child has a mental illness and if the child meets Title 7, Subchapter C commitment criteria.”{C}[15]{C}  The Court may also order the examiner to include an opinion on the juvenile’s fitness to proceed.  If the assessment results in a determination that the child has a mental illness, then the probation officer must refer the child to the Department of Mental Health/Mental Retardation.{C}[16]{C} When the assessment is complete, depending on the results, the Court may consider commitment proceedings{C}[17]{C} or lift the stay on the proceedings and continue the case if the child is found to have a mental illness {C}[18]{C}  Either party may file an application for commitment{C}[19]{C} which is then governed by the Health and Safety Code § 574.035 (temporary mental health services) and/or §574.034 (extended services).{C}[20]

CHILD UNFIT TO PROCEED, CHAPTER 55, CHAPTER C § 55.31- § 55.45

            Chapter C addresses unfitness (mental illness or mental retardation) and is ruled upon pre-adjudication.  Either the defense attorney or the prosecutor may request a probable cause hearing.{C}[21]{C}  The assessment process may be ordered following the hearing which can consider observations, relevant evidence and testimony.{C}[22]{C}  The juvenile proceeding is stayed during the assessment period{C}[23]{C} and until a fitness hearing determines whether or not the child is fit to proceed.{C}[24]{C}  If the child is found to be fit to proceed, the Court lifts the stay and the matter proceeds normally.{C}[25]{C} If the child is not found fit to proceed, then the Court moves forward pursuant to § 55.33.{C}[26]{C}  The Court may determine to place the juvenile who has a mental illness with the Texas Department of Mental Health and Mental Retardation, in a private facility or in an outpatient setting.{C}[27]{C}  If the juvenile has an issue with mental retardation, then the only placements that are available include MH/MR or a private facility and then only if the child meets commitment criteria under Section 593.052, Health and Safety Code.{C}[28]

CHILD LACKS RESPONSIBILITY FOR CONDUCT, CHAPTER 55, CHAPTER D §55.51 - §55.61.

            Chapter D addresses lack of responsibility (insanity) due to either mental illness or mental retardation.  Lack of responsibility is regarded as a defense issue to be presented at the adjudication hearing[29] but, as a practical matter, if an assessment is ordered to address lack of responsibility, it is generally ordered along with a “Fitness to Proceed” examination and those results will most likely be determinative of the outcome of the juvenile matter.   Specifically, the Family Code states “A child alleged by petition to have engaged in delinquent conduct or conduct indicating a need for supervision is not responsible for the conduct if at the time of the conduct, as a result of mental illness or mental retardation, the child lacks substantial capacity either to appreciate the wrongfulness of the child’s conduct or to conform the child’s conduct to the requirements of law.”[30]

            Again the motion for an assessment may be brought by either party[31] but the defense is usually the party who will be requesting the exam.  Depending on the outcome of the assessment, the case may proceed through the juvenile system[32] or the child may be subject to commitment proceedings.[33] Commitment proceedings may only occur IF the juvenile meets the criteria for commitment under the Health and Safety Code, Section 574.035[34] or Subtitle D, Title 7, Health and Safety Code.[35]

ETHICAL CONSIDERATIONS

Rule 1.01 Employment in an area of law in which attorney is not competent. 

A lawyer should know the specialized terminology (terms of art), the structure and the law surrounding the juvenile justice system.  The terminology in a juvenile case is different than in an adult criminal case.  The terms “adjudication hearing” and “disposition hearing” in the juvenile system refer to what are called “trial” and “sentencing” in adult criminal proceedings. A juvenile has a right to a trial by jury at the adjudication hearing.{C}[36]{C}  Whatever the outcome of any proceedings in the juvenile court system, the intent of the juvenile system is to rehabilitate the juveniles.  The term “probation” has a much broader meaning in the juvenile system since the child is given a probation officer on Day One.  The probation officer has investigative  responsibilities and will contact the school to obtain records. Juveniles cannot obtain bail.  They can remain in “detention” for up to thirty business days before charges must be pressed.{C}[37]

As for competency to practice in the juvenile court system, the ethics rule allows for supervision by another attorney or even self-study to learn more about an area of law.{C}[38] 

Rule 1.02. Scope and Objectives of Representation (a) . . . a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.{C}[39]{C}  (g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.{C}[40]{C}

            Due to this one rule, every attorney practicing juvenile law must be baffled.  What teenager, especially one with a mental health issue, can make valid or life-impacting decisions?  Not many.  That is why it is important for attorneys practicing in this field to ask questions that require more than a “yes” or “no” response.  The child should be able to explain to his or her attorney each step in the process.  No decision should be made without a clear answer from the child and, if there is any doubt, request assessment, a protective order or an ad litem. 

Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed and shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.[41]

            Life can be difficult for a child in detention.  If that child is there for the first time, the shock can be overwhelming especially for a young person with mental disorders.  The child may have had no idea that there is a jail for children. Time passes by slowly for children.  The client needs to hear from his or her attorney somewhat frequently.  The young person requires moral support along with an explanation of his or her rights.  Furthermore, the child with a mental disorder may not be able to process information or retrieve it successfully.  The juvenile will often misunderstand or forget.  Repetition is necessary for retention. 

            If the child is not detained, then the only way to speak with the client is for an adult to bring him or her to the attorney’s office unless the attorney is willing to visit the home of the child.  At that point, most guardians want to be present at the meeting.  That fact can make it difficult to communicate effectively.  Therefore, it is imperative that the lawyer request that the child and the lawyer have some time to visit without the guardian prior to any decision-making.  Further, the attorney must communicate with the parents or guardians who must sign the paperwork for a plea.  Sometimes the wants and needs of the child and the guardian(s) differ considerably and the lawyer must represent the desires of the client while carefully balancing the thoughts and concerns of the guardian(s) although requesting that a guardian ad litem be appointed is a possible solution if there is a conflict between the child and the parent.

Rule 1.05. Confidentiality of Information.   (b) … a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm.{C}[42]

How does the parent fit in?  The parent has the right to know what is happening with her child.  At the same time, the juvenile system is “quasi-confidential” to protect the rights of the child.  If the young person directs the attorney to not provide information to the parent about the child, what does the attorney do?  Is the parent the “client’s representative”?  Further, what is the responsibility of the attorney to the probation officer who is making the recommendations to the court regarding the juvenile.  Because of the conflict in laws and the fact that the child is a minor, the lines become blurry when dealing with juvenile matters. 

Ethics and the School. What are the school consequences of a minor violating the law? 

Attorneys do not always realize that their decisions and actions in representing a juvenile often flow into the arena of the school.  While an adult may suffer some natural consequences in employment or his family life when he violates the law, a child will undoubtedly face school consequences if s/he is placed on probation or detention.  The school will consider all serious behaviors—on or off campus.  The student will face being placed for up to 60 school days in the alternative school.  If that student is a child with special needs, there will be a “manifestation determination review” (MDR) conducted by the district.  At the MDR, the student’s A.R.D. committee will determine whether or not the behavior is connected to the student’s disability.  If the A.R.D. determines that there is not a connection then the student is subject to the same discipline as a student without a disability.  If the A.R.D.C. determines that there is a connection between the disability and the behavior, then the student will likely face consequences but will not be punished for behaviors over which he or she has no control unless the child possesses a weapon or drugs.  In the case of weapons and/or drug possession, the student will be placed in the alternative school.[43]

Which brings us to the next question on ethics--

If the juvenile truly has no control over his or her behavior, then why is the child being sent to the juvenile system?  Partial Answer:  Students with disabilities removed from their current placements through suspension or expulsion must continue to receive educational services to enable them to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting their Individualized Education Program (IEP) goals[44] and there are limited placements for students with severe disabilities.   Yet, it is the districts that have the resources.  The school districts are charged by federal law to provide behavior plans, to keep documentation of the student’s progress behaviorally, to meet as frequently as necessary to review and revise the plan[45] and to provide a continuum of services from least restrictive to most restrictive learning environments.[46]  The districts have the staff, the education and the training to address the individual needs of the child.   So, why is the child sent to a system where the individualized needs of the student are not designed to be met? 

The districts will tell you that the individual who was harmed by the child has the right to press charges.  First, that is true, however, every middle to large sized district has its own police force. The districts do have considerable control over that police force and whether or not charges should be brought.  The school districts should provide information and training to its police officers on behavior plans and how the school addresses the students’ behaviors through individual behavior improvement plans.  Second, the school staff person who has been harmed is often instructed by administrators to press charges against the student. 

What is the ethical position to take in these instances?  We would respectfully suggest that the ethical position of the juvenile court should be to hold an informal hearing prior to pressing charges for the purpose of determining if the federal mandates imposed upon the district have been met. Why is that child in court if the federal mandates have been minimalized or ignored?  In the alternative, a special education court could be developed or a committee could be appointed to determine if the federal mandates have been met.  That committee could determine that the school district has done its job and could recommend other services that might assist the child and the family. Then a condition could be imposed on the family that they must participate in services prior to dismissal of the case. If the juvenile system employed one or all of these methods of dealing with juveniles with mental disabilities, the vast majority of children with mental health needs would never enter the juvenile system. 

Which leads us to – the School to Prison Pipeline

            “Zero tolerance disciplinary policies, increased reliance on law enforcement and courts to address student misbehavior, and hostile school climates all contribute to a school-to-prison pipeline in Texas.”{C}[47]{C}  Once children are routed into the criminal system even if at a juvenile court level, the probability of them remaining in the system is high.  Students with disabilities inadvertently become the target of discipline especially if their disabilities include Autism or Emotional Disturbance because the associated behaviors are difficult for the school to address.  “Across the country, students with emotional disabilities are three times more likely to be arrested before leaving high school than the general population.”{C}[48]{C}  Our children with disabilities start to feel separated from society.  A teacher’s decision to refer students for disciplinary action pushes the student out of the classroom and potentially into the criminal justice system.{C}[49]

Issues adding to the problem—

Brian Rosenthal, reporter from the Houston Chronicle, wrote a couple of excellent articles lately about an artificial cap [8.5%] placed on districts as to the percentage of special needs children they are permitted to have in their schools.{C}[50]{C}  He stated that “Federal law requires schools to provide counseling, therapy, protection from discipline and other support to children with "emotional disturbances," including severe anxiety, depression, bipolar disorder and post-traumatic stress disorder. Today, however, Texas schools serve 42 percent fewer of those students” when one factors in enrollment in 2016 versus 2004 when the Texas Education Agency placed the cap on special education.{C}[51]{C} “There is no agreed-upon number for what percentage of kids have a disability that requires special education services.  The best approximation may be 15.4 percent.”{C}[52]{C} And, “In all, an estimated 500,000 school-age children in Texas have a serious mental illness that interferes with their functioning in family, school or community activities, according to the state Health and Human Services Commission. Only 30,034 receive special education services.”{C}[53]{C} “If Texas provided services at the same rate as the rest of the U.S., 250,000 more kids would be getting critical services such as therapy, counseling and one-on-one tutoring.”{C}[54]

            How does the information from Brian Rosenthal’s articles impact the juvenile justice system?  Not only does the system have to accept the special education student referrals to juvenile but now it must identify those with special needs.  It means that since 2004, the juvenile system has not only been inundated with children identified with mental health issues who the districts no longer want to deal with but also with juveniles who the districts have refused to identify as children having special education needs.  The juvenile justice system is getting the public school’s disposable children for whom society may be forced to pay for life if we do not get them out of the system.

            Again, the schools have the resources, the training, the educated personnel and a large variety of placement options.  The education a child with a disability can receive (unfortunately not “will receive”) in a public school far exceeds that which can be provided in juvenile detention or the Texas Juvenile Justice Department.  These children with mental health issues need to be returned to the schools. 

Suggestions—

            The juvenile justice system should not be the catchment for all children that the schools cannot or will not teach.  With residential placement of the child in a residential facility an option for students which the districts can provide, there is really no excuse for sending a student with a mental health issue to the juvenile system.  However, since students with mental disabilities are sent to Juvenile, the following suggestions might help alleviate the burden on the system while helping the child avoid becoming part of the school to prison pipeline.

            The Bexar County Juvenile System has several specialty courts.  Developing another to monitor the needs of children with mental health issues (and other special needs) would be cost effective and useful.  The Court could monitor medication compliance, behavior in school and out, compliance of the family with the Court’s recommendations and orders and the continuing mental health improvement of the child.  In the alternative, the Juvenile Court could develop a committee to make recommendations to the prosecutors and the judges about students with apparent mental health needs.  The committee could make recommendations for juveniles who are found fit to proceed or not lacking responsibility but who obviously need some interventions. That committee should consist of someone from the court system, a probation officer who is familiar with mental health issues, attorney(s) familiar with children with disabilities and someone from the community who works daily with these children and who is familiar with community resources.  Finally, there should be a special needs diversionary program so that children who are fit to proceed/not lacking responsibility but mentally disabled, can avoid acquiring a juvenile record.

Conclusion

            Attorneys for children in the juvenile justice system have an ethical obligation to be aware of the signs of mental health issues.  Judges, too, should be cautious when adjudicating children who do not seem to understand or who only respond with only a “yes” or “no” to questions.  Judges can order a psychiatric examination sua sponte if they have any doubt about a child. {C}[55]  Unfortunately, the State of Texas and the Texas Education Agency have violated their legal and their ethical obligations for these children by setting an artificial cap on identification.  As a result, attorneys working within the Juvenile Justice System now have an additional ethical responsibility as officers of the court to recognize this violation of our children’s rights and address it through diligence in working with juveniles.