Federal and State Laws and Entitlements

Section 3.11

Lawyers for Alleged and Adjudicated Status Offenders Should Ensure that Child Clients’ Rights and Entitlements under Relevant Federal and State Laws are Protected

Various federal and state laws give youth rights that can help them avoid justice system involvement or secure confinement.  In some cases attorneys can argue for a case to be dismissed or stayed, if social service, juvenile justice or education systems fail to comply with certain protections or entitlements, or a case may be transferred to another system if child protection, domestic relations or other laws are implicated.  Attorneys representing alleged status offenders must be familiar with these laws to ensure youth’s rights are protected and that they achieve the best possible outcomes for their clients.

Examples of laws and entitlements that may be applicable in status offense cases, include:

  • The Juvenile Justice and Delinquency Prevention Act sets out certain core requirements states must comply with to receive federal grants to address juvenile delinquency, including prohibiting secure confinement for status offenders (with certain exceptions, such as violation of a valid court order, for a limited time early in the case or for out-of-state runaway youth).1
  • Medicaid and its Early and Periodic Screening, Diagnosis and Treatment provisions offer various physical and mental health services, including case-management and preventative and rehabilitative care, to eligible youth.2  The Health Insurance Portability and Accountability Act (HIPAA), federal drug and alcohol regulations and state confidentiality laws also provide some privacy protections which may be applicable to status offenders.3

​Attorneys representing alleged status offenders must be familiar with these laws to ensure youth’s rights are protected and that they achieve the best possible outcomes for their clients.

  • Various education and special education laws are relevant to alleged status offenders.  The Individuals with Disabilities Education Act entitles youth with qualifying disabilities to a “Free and Appropriate Education,” which generally includes an “Individualized Education Program,” which specifies the instruction and other services the child will receive, tailored to his or her needs.4  The Americans with Disabilities Act and Section 504 of the Rehabilitation Act also protect youth from discrimination on the basis of their disabilities.5  The Bilingual Education Act can provide some services to youth who are non-native English speakers, and the Mckinney-Vento Homeless Assistance Act provides protections to homeless youth such as the right to stay in their local or most recent school.6
  • The Adoption and Safe Families Act and other child welfare laws provide many service entitlements and other protections for youth who are in a qualified placement through their local child welfare agency.  Under ASFA the child welfare agency must make reasonable efforts to avoid removing children from their home and, after removal, provide a case plan, both of which involve providing numerous resources and services to meet the child’s needs and reunify the family.7
  • The Indian Child Welfare Act applies to status offense cases and includes provisions for the treatment and placement of Indian children, requiring, for example, that out of home placements reflect Indian values and culture, are reasonably near home, and represent “the least restrictive setting which most approximates a family and in which his special needs, if any, may be met.”8  ICWA also requires that services be provided to try to avoid breaking up Indian families.  See Section 3.2.
  • Emancipation laws available in some jurisdictions, which allow youth to petition under state law to be considered adults in the eyes of the law, or family court proceedings which can give custody of a young person to a non-custodial parent or other adult, may help avoid deeper juvenile court involvement for some youth, particularly where conflict with, or abuse/neglect by, a parent underlies the status offense case.9
  • Relevant federal immigration laws and regulations, such as those regarding Special Immigrant Juvenile Status10 may also provide immigrant youth some protections.
  • The federal constitution and state laws grant youth certain due process rights and attorneys should be particularly aware of youth’s constitutional and other rights to avoid self-incrimination, both in the courtroom and while receiving assessments and services. See Section 3.10.11
  • State constitutional rights and state statutes, such as those relating to education or defining when youth are entitled to counsel in status offense cases, may provide additional rights and entitlements to youth in status offense cases. 

1 Bilchik, S. & Erika Pinheiro  “What the JJDPA Means for Lawyers Representing Juvenile Status Offenders” in Representing Juvenile Status Offenders. (citing 42 U.S.C. § 5633(a)(11) (2006)) Washington, D.C.: American Bar Association Center on Children and the Law, 4-11. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf; See also, 42 U.S.C. 5633(a), which includes an exemption to the deinstitutionalization of status offenders requirement, permitting the detention of young people held in accordance with the Interstate Compact on Juveniles.

2 Stone M., supra note 136 at 53-54 (citing 42 U.S.C. § 1396a-d).

3 Rosado, L.M. & Riya Shah  (2007). Protecting Youth from Self-Incrimination when Undergoing Screening, Assessment and Treatment within the Juvenile Justice System. Available at: http://www.jlc.org/sites/default/files/publication_pdfs/protectingyouth.pdf.

4 Tulman, J. “Using Special Education Advocacy to Avoid or Resolve Status Offense Charges” (citing 20 U.S.C.  §§1400-1490, 34 C.F.R. pt 300) in Representing Juvenile Status Offenders. Washington, D.C.: American Bar Association Center on Children and the Law, 92-96. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf

5 Id. At 111-112.

6 Stone, M. (2010). “Accessing Intervention Services for Status Offenders and Avoiding Deeper Involvement in the Court System,” supra note 136 at 46.

7 Stone, M. (2010). “Accessing Intervention Services for Status Offenders and Avoiding Deeper Involvement in the Court System,” supra note 136 at 48 (citing 42 U.S.C. §§ 620-679).

8 25 U.S.C. §1915, also see 25 U.S.C. §§ 1901 –1915 and The Indian Child Welfare Act and Advocacy for Status Offenders. (2010). Washington, D.C.: American Bar Association Center on Children and the Law. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/ICWA_factsheet.authcheckdam.pdf.

9 Heyd J. and  Casey Trupin  “How Status Offenses Intersect with Other Civil and Criminal Proceedings” in Representing Juvenile Status Offenders. Washington, D.C.: American Bar Association Center on Children and the Law, 132-136. Available at: http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/RJSO_FINAL.authcheckdam.pdf.

11 See, e.g., Rosado, L.M. &  Riya Shah  (2007). Protecting Youth from Self-Incrimination When Undergoing Screening, Assessment and Treatment within the Juvenile Justice System, available at http://www.jlc.org/sites/default/files/publication_pdfs/protectingyouth.pdf.