How a shortage of foster placement options can lead to more youth arrests

Collaborator: Streetlight
Published: 04/19/2023, 7:15 PM
Edited: 04/19/2023, 7:24 PM

Written By: Mollie Bryant

(NATIONAL) About a fifth of incarcerated people in the United States lived in a foster home or institution at some point when they were growing up.

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Washington’s child welfare system deeply affected Arthur Longworth, who was released from prison about a year ago after serving 37 years of a life sentence. Before a judge overturned his sentence, Longworth had spent years writing about the foster care-to-prison pipeline and how it impacts people like him.

“We talk about mass incarceration and so many people in prison,” said Longworth, a policy specialist for Treehouse, a Seattle nonprofit that serves youth in foster care. “We should start looking at some of the feeders of that, and one of the major feeders is the way we do foster care in this country.”

In Washington, 1 in 5 youth who have aged out of foster care are arrested within a year, according to state data.

Longworth lived in a Portland railyard and the streets of Seattle before he was caught stealing to survive and was placed in foster care. He lived in O.K. Boys Ranch and Kiwanis Vocational Home, group homes in Olympia and Centralia that closed in 1994 due to abuse allegations, which were later the subject of class action lawsuits.

While incarcerated at the Monroe Correctional Complex, Longworth founded State-Raised, a group that has advocated for better access to education and other resources for kids in the child welfare system.

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For some people who have experienced both foster care and incarceration, their first contact with law enforcement occurred during child welfare situations.

“(Being) yanked out of their homes by cops instead of social workers … not only traumatizes the youth but sets in them a very harmful, negative, lifelong connotation with police and law enforcement,” Longworth said. “It’s exacerbated as they’re moved from placement to placement, and they run away from abusive placements and have to survive on the street. Then it’s not social workers who come and get them, it’s the cops.”

Lack of placement options can extend detention stays

Across the country, state welfare systems have a shortage of places where foster kids and youth can stay.

After a kid is arrested, foster parents often won’t take them back. And in states like New Mexico, kids in foster care tend to spend more time in detention than other kids because there’s nowhere to place them.

“Even if the judge wants to release them, they have to have somewhere to go,” said attorney Bette Fleishman, executive director of Pegasus Legal Services for Children in Albuquerque. “A lot of these kids … end up sitting in detention, when if they had a home placement, they would have been released.”

“Crossover” or “dual status” youth are involved in both child welfare and juvenile justice systems. Dennica Torres, managing attorney for the juvenile division of the New Mexico public defender’s office, said it can be challenging to negotiate a plea for detained crossover youth who don’t have placements.

“The crossover youth really are apprehensive to take a plea when they’re not sure where they’re going to end up, and I honestly don’t blame them,” Torres said. “It does oftentimes result in the child remaining in custody much longer than if we had a home to send the child to.”

[ Read more: After arrest, low-income defendants may spend weeks or months in jail before they can request a lower bond ]

Torres said in those cases her office works with attorneys from kids’ abuse and neglect cases and their permanency planning worker to try to find a placement before presenting a plea offer.

A shortage of foster parents and community resources have led many states to place kids in child welfare agency offices and hotel rooms until they find other placement options.

Boys in foster care are more likely to stay in group homes, which have been linked to higher rates of delinquency. A frequently-cited study from 2008 found that kids who live in group homes are 2.5 times more likely to be arrested as a minor.

In New Mexico, foster youth are often placed in homeless shelters when other options are unavailable. Teenagers can spend months in the shelters, also known as children’s crisis shelters, which don’t provide intensive mental health treatment.

“In the meantime, they’re in a different community, they’ve lost many of their friends, they get way behind in school,” said Fleishman, who represents the lead plaintiff in a class action lawsuit regarding New Mexico’s foster care system known as Kevin S. “And then whatever good, healthy support you had in that community, more likely than not, you’re going to lose that support.”

The shelter placements continue despite a 2020 settlement in the Kevin S. lawsuit, which required the state to limit the use of congregate care, including shelters.

Shelters may decline to accept kids who have been involved in the juvenile justice system. In those cases, the kids stay at offices for the New Mexico Children, Youth and Families Department until the agency can match them with long-term placements.

Probation violations also can work differently for youth involved in both the foster care and juvenile justice systems. Torres said kids who run away while on probation have 24 hours to report to their probation officer, and they typically return home with adjustments made to their probation agreement. If a kid in foster care does the same thing, they usually can’t go back to their home placement, and they wind up returning to the detention center, Torres said.

“This is just a vicious cycle for them,” she said. “We really, in New Mexico, need to focus on funding more programs for these kids, more group homes where they can get their specific needs met, instead of funding the detention center to house them and feed them every day.”

[ Read more: Homelessness is rising nationally. So are laws targeting the unsheltered. ]

Last year, Texas had an average of 60 kids a day who didn’t have a placement and stayed in offices, hotels, and other places that aren’t regulated by the state. Some of those kids have been denied placements because of their juvenile justice involvement.

“So they’re stuck in this limbo,” said Martin A. Martinez, youth justice policy advocate at Texas Appleseed. “That just adds to the stress they’re already experiencing.”

Why kids in foster care are drawn into juvenile justice more than their peers

The real question, Fleishman asked, is why should these kids get arrested in the first place?

“Ideally, the system—if it was working well enough, which in a lot of states, it’s not—could identify a kid that’s starting to struggle or having a hard time,” she said, “and step in and respond to that need before it accelerated to the point of the young person having to be arrested.”

Group homes and foster parents sometimes call the police about behavior that wouldn’t have prompted the same reaction from parents of kids outside of the welfare system.

For instance, many kids get into fights, but children who fight in foster or group homes are more likely to be arrested on assault charges and lose their placements.

“Then because you’ve got a pending case that makes you look like, on paper, a violent kid, no foster home will take you,” Fleishman said. “So you end up sitting in detention because you have nowhere to go.”

In some states, including Texas, running away is a status offense, an action that’s only considered against the law if it’s committed by a minor. These infractions, like skipping school or breaking curfew, can signal a kid needs help, but they may lead to juvenile justice involvement instead.

“If a child runs away, it’s usually from an unsafe or unhealthy situation,” Martinez said. “Instead of being given resources or connected with simple guidance, (Texas) can charge youth and give them a criminal record.”

[ Read more of our criminal justice coverage here ]

Local curfew rules also can lead to the arrest of kids who are homeless or work late-night shifts.

How trauma-informed practices and education can reduce arrests of kids affected by child welfare cases

Youth in foster care experience high levels of trauma that has been linked to higher rates of recidivism.

Longworth and other advocates have pushed for child welfare systems to adopt trauma-informed practices, which can include screenings and treatment for trauma.

“Foster youth wear their trauma,” Longworth said. “Each of these moves, placements, everything that happens to them just makes it worse and harder, and a lot of their juvenile legal system contact and school disciplinary problems are centered in trauma.”

Up to 80% of kids in foster care experience significant mental health issues, compared to about 20% of the general population, according to often-cited data from about 20 years ago.

“Constant instability in their living placements really can compound the stress and mental health issues they experience,” Martinez said. “Unfortunately, oftentimes youth who have experienced significant levels of trauma, they act out, but these are really trauma responses.”

In the Texas Legislature, Senate Bill 441 and House Bill 2066 would require foster care facilities to provide crisis response training to their staff. The bills also would require local juvenile justice boards to create diversion policies for kids who live in foster care facilities.

Some states offer or are working toward providing trauma-informed services. Under New Mexico’s Kevin S. settlement agreement, the state is required to build trauma-informed services into its child welfare system and meet benchmarks for taking certain actions toward reforms. An annual report on the state’s progress released in November said the state had met seven of 16 benchmarks.

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Some policies aim to chip away at the foster care-to-prison pipeline through education. More than half of states offer tuition waivers or scholarships to students who have been in their child welfare system. Two years ago, a Washington law went into effect requiring the state to increase educational opportunities for youth in detention centers. And last year, Michigan’s Board of Education pushed for legislative reform in response to an NBC News investigation that found classes in some state-funded residential facilities didn’t count as credits toward high school graduation.

Students in juvenile detention have lower graduation rates than their peers. In Washington, 16% of detained students graduated high school, compared to 72% of non-detained students, according to a 2019 state study.

There are a lot of crossovers between youth experiencing foster care, homelessness and incarceration, Treehouse spokesperson Katie Adams said by email.

“They are very often the same students, separated only by time,” she said.

Oklahoma Human Services’ Successful Adulthood Program helps 16 to 21-year-old youth transition from state custody to independent living. The program connects these youth to things they may need, including education and employment resources. Jennifer Boyer, the program’s administrator, said those resources increase youth’s opportunities but have another purpose—helping youth build support systems filled with people they can reach out to if they need a hand.

“Sometimes our young people don’t have that and so then they’re kind of stuck,” Boyer said. “One of the things we really try to do is help them identify who those connections are in their lives and really develop those relationships because we want them to have a safety net, and that safety net is people.”

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