Juvenile courts need authority to prescribe placements

December 09, 1990|By Susan Leviton

Torri is 16 years old. Like most 16-year-olds, he has lived all of his life with his parents. Unlike other 16-years-olds, Torri's problems do not involve studying for the SAT exams or who to ask to the prom.

Torri has been severely handicapped since birth. He uses a wheelchair and needs constant care and attention. Yet, in many ways, Torri is lucky. Torri's parents have adapted their lives to meet his needs. For 16 years, his mother and father shared the difficult task of caring for their son, helping him bathe, dress, eat, and get in and out of his wheelchair.

Several years ago, Torri's father suffered a back injury, and is now physically unable to lift his son. Recently, Torri's mother was in an accident causing multiple leg fractures. She is now in a full leg cast and is nonambulatory except by wheelchair.

Because they were no longer able to care for Torri on their own, Torri's family turned to the juvenile court for help. The court decided that Torri was a "child in need of assistance." A juvenile court judge and Torri's family agreed that Torri could remain at home if he received in-home services. The state agencies charged with the responsibility for providing these services acknowledged that Torri needed the help -- but refused to provide it.

The agencies, locked in bureaucratic inflexibility, argued that they could not afford to pay $18,677 for in-home services for one year because the budgeted allotment for that type of service was exhausted. Instead, the agencies proposed to take Torri from his parents' home and place him in an institution at an annual cost to the state of $53,655.

Despite the disparity in costs, financial and emotional, the agencies argued that the juvenile court lacked the authority to order cost-effective in-home services. A case now awaiting decision before the Court of Appeals, the state's highest court, will determine how much authority courts have in deciding how to deal with cases like Torri's.

Almost 40,000 children appear before the juvenile court each year. Of these, more than 5,000 children are placed in the custody of the state. Typically, the state assumes the role of custodian when a child's parents are unable to provide adequate care or supervision. If the state itself provides inadequate or inappropriate care to children in its custody, it has subverted the very basis for its intervention.

Under the Juvenile Causes Act, the juvenile court is required to specify the nature of a child's treatment program. Social service agencies are responsible for establishing, administering and contracting for programs to address the needs of these children. By assigning distinct roles to the juvenile court and to the agencies, Maryland's legislature ensured a balance of power and a system of checks and balances which minimizes the possibility that a child's needs will be ignored.

Unfortunately, as they have grown larger, social service agencies have become increasingly inflexible and unresponsive to the needs of children in the juvenile system. Recently, the Department of Juvenile Services challenged court orders to place three children in a private facility, which offers more services and costs less than than the state facility recommended by the agency.

On November 30, the three consolidated cases were heard by the Court of Appeals. The court will now decide whether to strip the power of the juvenile court to place children in treatment programs designed to meet their needs.

Agency representatives argue that court-ordered services will bankrupt the agency and are an unconstitutional encroachment on executive control over the budget. The issue is not just cost. As in Torri's case, the juvenile court may order a less expensive placement than that recommended by the agency. Rather, the dispute concerns the authority of the juvenile court to designate the types of programs which will serve Maryland's children.

Agencies have traditionally invested most of their funds in restrictive and expensive state-oriented facilities. But the most effective and least costly placements are community-based treatment programs and private residential facilities. Ironically, no agency contests the authority of the juvenile court to place a child in the Charles H. Hickey Training School -- a state institution which offers minimal educational and vocational services at a cost of $60,000 per year. Instead, the agencies argue that the juvenile court may not order a less expensive private placement or in-home services for children such as Torri.

The critical role of the juvenile court is to make certain that no child is lost in the system dominated by large state agencies. While the agencies seek systemic solutions to system-wide problems, the juvenile court judge has an obligation to focus on the needs of the individual child before the court. The court is also able to mandate parent participation in treatment where that will benefit the child.

The juvenile court judge rejected the agencies' recommendation institutionalize Torri. Because of the juvenile court's intervention, Torri received the services he needed, and continues to reside with his parents at home.

The legislature designed the present system to minimize the injustice experienced by children whose parents are incapable of providing for their care. We hope the Court of Appeals will reaffirm the significant role of the juvenile court in providing help for children who might otherwise fall through system's cracks.

Susan Leviton is president of Advocates for Children and Youth and teaches the at University of Maryland law school.

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