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More information Read the opinion (PDF) Read the press release about the amicus brief (5/6/06) Brief of amici curiae

Jailing of Runaway Foster Youth Without Attention to Mental Health Needs Overruled

On Dec. 20, 2007, Washington State’s highest court reversed a lower court’s imposition of extended detention of children who had run away from their foster care placements. The case involved two teenage girls who had repeatedly run away from foster care placements and, following a series of seven-day detention periods permitted by statute, were subjected to periods of extended detention, ranging from 30 to 60 days.

The juvenile court used its inherent contempt power to impose these long incarceration periods. One girl was detained for 60 days after running away a week after she had been released from 30 days' detention for a previous run. Both girls showed signs of serious emotional disturbance, and one heard voices and cut herself while in detention. Yet little attention was paid to their underlying mental health needs. Instead the children were repeatedly incarcerated for running away.

The court issued a fragmented decision with multiple opinions. The outcome, however, is that a juvenile court cannot use its contempt authority to incarcerate foster care runaways unless it has first explored statutory alternatives and also has ensured that needed mental health and substance abuse services have been provided.

The girls challenged the court’s power to punish them with extended periods of detention. The Bazelon Center coordinated and helped draft an amicus brief on behalf of national mental health consumer and family groups, arguing that children who run away from foster care placements should not be punished with extended detention--which often does harm and fails to stop runaway behavior. In any event, the brief asserted, such extended detention must not be imposed before exploring the children’s mental health needs and providing appropriate services, such as wraparound and therapeutic foster care. These services are more effective than prolonged incarceration in addressing the issues that cause runaway behavior.

The amicus brief was filed on behalf of Mental Health America, the National Alliance on Mental Illness, the Federation of Families for Children's Mental Health, the National Council for Community Behavioral Healthcare, and the Bazelon Center. The law firm of Preston Gates & Ellis LLP (now K&L Gates) drafted the brief, with the Bazelon Center as "of counsel." This brief proved critical to the outcome of the case.

A plurality of the court (four of nine judges) said that the juvenile courts can use their inherent contempt power to impose extended detention beyond the seven days permitted by statute, as a sanction against children who run away from foster care placements. However, such detention may be imposed only after criminal or other statutory sanctions have first been explored. A concurring opinion signed by two judges concluded that (1) children subjected to such extended detention must either be permitted to end the detention by complying with the court's orders, or if not so permitted, must be given full criminal due process protections, and (2) more importantly, these children's mental health needs should be considered and addressed before extended periods of detention are imposed as a sanction.

The concurring opinion drew heavily from our amicus brief, noting that many children in foster care have mental health problems that lead to their runaway behavior. This opinion cited our brief to show that detention does not ameliorate runaway behavior and in fact, often exacerabates the problem. These judges stated: "When considering whether less restrictive alternatives exist, the question is not merely whether a seven day purgeable sanction has proven effective, but whether needed mental health services or chemical dependency treatment have been provided. . . . Detention should not be used as a substitute for access to basic services, treatment, and care."

The concurring opinion is controlling. In a case such as this, where there is no majority but a plurality and concurrence, the narrowest ground supporting the decision among a majority of the judges controls. Here, the narrowest ground supporting the use of inherent contempt power to detain children who run away from foster care placements is that this action may be taken only after other statutory sanctions have been explored and proven ineffective AND needed mental health services or substance abuse treatment have been provided.