by LEAH BETH WARD
February 19, 2008
Maria Ochoa was a 15-year-old chronic runaway in foster care when Robert Inouye, Yakima County’s juvenile court commissioner, took the unusual step of sentencing her to jail for a total of three months.
Although running away is not a crime, Inouye jailed Ochoa in 2004 because she repeatedly violated his orders to stay off the streets, where she ran with gangs and took drugs.
State law lets judges detain foster children for up to seven days for noncriminal offenses such as running away and truancy. Most are released after 24 hours if they write an essay promising they won’t misbehave again. But Ochoa continued to run, putting her in danger.
Inouye gave her 30 days in the juvenile-only detention center on Jerome Avenue, where runaways are in cells adjacent to juveniles with serious criminal records. When her sentence was up, Ochoa ran away again. Back before Inouye, she found herself with a 60-day sentence and the threat that he might lock her up until she turned 18.
In jail, Ochoa — who had been raised in foster homes on and off since she was 5 — began hearing voices in her head and tried to cut herself with playing cards. No one offered counseling, and she didn’t receive a psychological evaluation until after she was released. No one in the child welfare system suspected she might be mentally ill.
“There was someone who did counseling and if that person had time, they might see you,” Ochoa, now 19, said in a recent interview. “But I never saw them.”
After her release, public defenders appealed Inouye’s sentences in the case of Ochoa and two other girls who had been similarly jailed. They argued that Inouye exceeded his authority and failed to pursue less restrictive alternatives, such as ordering social workers to provide more mental health services.
The public defenders lost at the state Court of Appeals. They appealed to the state Supreme Court in Olympia, where they were joined by a host of state and national children’s advocacy groups.
In a December decision that drew national attention, a majority of the justices ruled that Inouye had improperly incarcerated troubled youth before exhausting less severe alternatives. Jail, the court found, must be the absolute last resort for foster children who engaged in noncriminal misbehavior.
But the court’s ruling — which lawyers on both sides describe as confusing — won’t necessarily prevent frustrated social workers from seeking incarcerations in excess of seven days.
The state’s regional administrator in Yakima for the Department of Children and Family Services, a unit of the Department of Social and Health Services, said he will continue to seek 30-day or 60-day detentions in extreme cases. County Prosecutor Ron Zirkle said his office will prosecute minors for criminal contempt if asked, a step the Supreme Court decision authorized.
Lawyers who represented Ochoa and the two young women said the high court ruling should refocus the state’s child welfare system on improving mental health services to children in crisis.
“A vast array of experts in the case said incarceration didn’t treat the problem and probably made it worse,” said Greg Link, a lawyer with the Seattle-based Washington Appellate Project.
Ochoa, who is studying criminal justice at Yakima Valley Community College, said she has come to accept what Inouye did, though she thinks it was wrong. “He should have found another way, like a group home, because jail just made me grow more hate toward the world,” she said. “But in a way, it helped become the person I am now. I remember sitting in there saying, ‘I never want to be here again.'”
Judge feels misunderstood
Briefs filed in the case suggest that the 56-year-old Inouye is a heartless judge who doesn’t understand the social pathology of troubled kids in foster care.
“The Supreme Court decision reversing the commissioner’s sentence is a victory for troubled youth who are being incarcerated for behaviors symptomatic of their mental illness, broken homes and the trauma they have suffered,” said Pat Arthur, senior attorney at the Oakland-based National Center for Youth Law.
Inouye, who was a family lawyer in Yakima before being named a full-time court commissioner 11 years ago, said in an interview that he took great care to exhaust all other alternatives before imposing the 30- and 60-day sentences. He has used a judge’s “inherent power of contempt” to jail noncriminal minors only six times since 2003. “It’s not something I go into happily,” he said.
In the past, the state appellate court has recognized judges’ need to use contempt charges to “coerce” good behavior from foster children who run away. Inherent contempt refers to a judge’s need to control the courtroom.
But Inouye said the recent Supreme Court ruling reflects an “ivory tower” mentality toward the problem of chronic foster-care runaways. “My reaction was that they didn’t have enough information on the ground about real situations and what kind of interventions sometimes are needed to help kids turn around,” he said.
On the other hand, juvenile justice expert Jeffrey Butts, of the University of Chicago’s [Chapin Hall] Center for Children, said there’s widespread agreement that incarceration does not help runaway youth. Still, the answer is not to blame juvenile judges, Butts said. Imagine someone’s 13-year-old daughter with a 28-year-old so-called boyfriend,” he said. “Imagine drug abuse and prostitution. What are your choices?”
If communities are appalled that judges jail noncriminal kids, he continued, then “the actual closing of that jail door will force the community to come up with alternative resources.”
Lack of treatment facilities
Up to 80 percent of children in the welfare system have sustained so such emotional and psychological trauma that they are diagnosed with attention-deficit disorder, major depression, or other psychological disorders, according to the American Academy of Child and Adolescent Psychiatry.
In a concurring opinion in December, Washington Supreme Court Justices Barbara Madsen and the now-retired Bobbe Bridge took special note of the need for mental health treatment for these children. They said dependency court judges should consider the mental health needs of juveniles before using detention. Incarceration, they noted, is often ineffective and may be harmful.
“Detention should not be used as a substitute for access to basic services, treatment and care,” Madsen wrote. Inouye, whose wife is a psychotherapist, said he is a big believer in mental health services. “But in extreme cases, I can’t get those services going because (the children) are making their decision to (run away),” he said.
The deeper issue, Inouye said, is the state Legislature’s failure to fund secure inpatient treatment facilities for children with drug and mental health issues. The Legislature authorized judges to lock up kids for inpatient treatment but never appropriated money to pay for the facilities, Inouye said. The state operates several facilities for criminal juvenile offenders but not for minors who have committed only noncriminal misbehavior like running away.
Even if there were such secure treatment centers for chronic runaways, the law does not allow Inouye to order someone like Maria Ochoa to be admitted unless she committed a crime. “On the civil side, we lack the infrastructure and power to require treatment,” he said.
Sonia Rodriguez, the public defender who represented Ochoa and the other girls jailed by Inouye, agrees that the state hasn’t provided adequate resources to help. “If you have a kid in crisis and they have mental health problems,” she said, “there really isn’t an adequate immediate response unless the state is willing to pay for private care.”
The state requires caseworkers to determine if the child is eligible for subsidized mental health care at a community clinic. But Rodriguez said the process “takes forever.” Often, by the time any care is approved, the child has run away again.
Even Nichols, the regional DSHS administrator, isn’t sure that children in extended detention are receiving mental health services. “You would hope they would get services in the longer detention,” he said.
Still wants to jail kids
Nichols said DSHS is still sorting out how the Supreme Court ruling will affect the way it deals with chronic runaways. The state is pushing caseworkers to document what alternatives they’ve tried before asking for an extended detention.
According to Nichols, DSHS has requested longer detentions about 12 times statewide since 2001, with half of those in Yakima County. Children’s advocates say using this power even once is too much. But Nichols disagrees that the state — or Commissioner Inouye — is overusing it, arguing that Inouye has made sure detention is employed only as a last resort. “I think (Inouye) has a great deal of patience,” Nichols said.
While the Supreme Court upheld the use of detentions in excess of seven days, it also said that DSHS first must pursue criminal contempt charges. If the department thinks doing so would help change the runaway’s behavior, it has to ask the county prosecutor to file the charges.
Zirkle, the Yakima County prosecutor, said his office will prosecute if asked. “We feel we need to protect the integrity of the justice system,” he said. “If (runaways) get convicted, it’s a problem they’ve created for themselves.”
But Inouye doesn’t like that idea. Criminal contempt, he said, is a long process that wouldn’t help a minor in a crisis. Plus, a conviction would stigmatize the child. “I don’t like the idea of criminalizing kids,” Inouye said.
Copyright © 2008, Yakima Herald-Republic