Attorney Amanda Simmons Publishes Article about the Troubled Teen Industry in the California Women Lawyers Association Winter Newsletter

The American Bar Association recently adopted Resolution 605 at the 2023 Annual Meeting.  This important resolution provides support for the Stop Institional Child Abuse Act and similar state, local and federal legislation that aims to prevent child abuse in youth residential treatment programs.  

Resolution 605  was developed by the Commission of Sexual Orientation and Gender Identity (SOGI) and the Section of Civil Rights and Social Justice, as part of a collaborative multi-year effort led by Skip Harsch, Director of the SOGI Commission.  This Commission has taken the lead on the project due, in part, to previous research that has clearly identified that children of color and LGBTQ youth have a much higher likelihood of ending up in residential treatment than their peers.  

The report accompanying the resolution detailed a number of challenges facing policy makers and legislators including inconsistent data collection at both the state and federal level, confusion over choice of law and jurisdiction, and inability to monitor and enforce consistent standards.  In addition to these broad policy challenges, practitioners should be aware of a number of common legal issues facing youth placed in youth treatment programs.  

What is the Troubled Teen Industry? 

Policy makers have struggled to effectively regulate this industry, often referred to as the Troubled Teen Industry, for decades.  This catch-all term may refer to wilderness therapy, residential treatment facilities, psychiatric programs, special education schools, congregate care centers, and therapeutic boarding schools.  Each year, as many as 200,000 children may be placed in these settings through the juvenile justice system, child welfare agencies, school districts, insurance providers and parents. With origins in the almshouses, workhouses, convict farms, correctional institutions, asylums and hospitals, modern day youth treatment programs have evolved from centuries of locking up the disabled or unfit and removing them from the daily interactions of community life by confining them to a cell. 

The legal community has wrestled with the issue of child abuse in residential facilities since at least the 1970’s, with one Senate report describing the harsh behavior modifications commonly used in youth treatment programs as similar to the brainwashing techniques employed by the North Koreans.  Credible research has documented serious maltreatment in youth residential programs, including sexual assault, physical and medical neglect, and bodily assault resulting in civil rights violations, hospitalization, or death.  Numerous other government investigations of the $23 billion industry have followed, but meaningful change has proven elusive.  

Common Legal Issues with Youth Treatment Programs

Despite the duration and magnitude of the issue, many lawyers and judges remain unaware of how it may be impacting their clients and cases. Below are five common legal issues that may arise when working with clients impacted by youth treatment programs.

1. Educational Abuse: California Education Code 56365 allows for placement of special education students in out-of-state, nonpublic, nonsectarian schools if the school district is not able to provide a Free and Appropriate Public Education to the student.  The out-of-state school should administer the student’s Individualized Education Program (IEP)  and coordinate with the local school district to ensure that the student is meeting the appropriate benchmarks.  However, it is difficult to monitor student’s progress and students with some of the highest educational requirements may end up receiving little or no education at all.  

2. Civil Rights Violations: In addition to the racial and social justice issues and disparate effect  upon minority and LGBTQ communities, individuals with disabilities are also heavily impacted by overuse over residential programs.  In Olmstead v L.C., 527 U.S. 581 (1999) the Supreme Court held that the unjustified segregation of individuals with disabilities violates Title II of the Americans with Disabilities Act.  Despite this landmark case, the goal of the integration mandate in Title II remains largely unmet, and lawsuits throughout the country are claiming that children with mental health challenges are experiencing a revolving door of institutionalization.  

3. Child Trafficking: Government agencies are recognizing the increased prevalence of sex trafficking within the child welfare system and juvenile justice systems. With AB 153 (2021)  California ended the use of out-of-state facilities by child welfare and the juvenile justice system, requiring that all children placed in out-of-state residential facilities be returned to the state.  While legislation like this might help to curb sex trafficking amongst vulnerable California children, the legal community must continue to take action and prevent the sexual exploitation of youth placed in residential treatment facilities.

4. Deceptive marketing and fraudulent business practices: Advocacy organizations have voiced concern over deceptive marketing practices in teen treatment facilities for over a decade.  These practices can include sales bonuses and undisclosed financial relationships, misrepresentation of staff qualifications, and efforts to hide past child abuse or financial mismanagement.  Fraud claims in California may have delayed discovery rules allowing for claims to be pursued after the 3-year statute of limitations under Section 338(d) of the California Code of Civil Procedures.  Thus, attorneys in California wishing to pursue litigation against harmful facilities should consider including claims of fraud, where appropriate, which has proven to be a successful litigation tactic in other cases nationwide.   

5. Injuries, sexual assault, and wrongful death: Tort claims are a powerful and long term deterrent to systemic, abusive practices.  Inconsistent reporting standards obfuscate an accurate understanding of the prevalence of abuse within residential treatment centers. Despite the lack of clear definitions and reporting, injuries from overuse of restraints are extremely common in youth treatment programs.  Likewise, sexual assault is a pervasive issue leaving lifetime consequences for victims.  Wrongful death claims are unfortunately common as well due to negligence and medical neglect.  Youth experiencing these types of injuries are often non believed by the legal system and mistreated by law enforcement when trying to report concerns, often due to bias against mental health issues and institutionalization.  We need lawyers who are trauma-informed and able to handle civil claims without creating additional challenges and retraumatization for victims.

How can the legal community get involved to support effective change?

Meaningful change is nuanced and will take time and coordinated effort at both the federal, state, and local levels to ensure the safety of vulnerable youth in treatment facilities.  Ongoing efforts must be made to educate lawyers and the judiciary, both in California and nationwide, to ensure that individuals who represent and decide cases impacting vulnerable children are equipped with adequate knowledge and resources regarding this issue.  Below are three suggestions to effectuate change at both the federal, state, and local levels: 

• Support the Stop Institutional Child Abuse Act
  
  The Stop Institutional Child Abuse Act is a bipartisan, bicameral, federal bill that was introduced to Congress on April 27th, 2023. This crucial legislation is a response to pervasive child abuse and neglect in the “Troubled Teen Industry” and youth residential treatment programs across the nation. The Act envisions a more accountable, transparent, and efficient system for safeguarding the health, safety, and well-being of youth in residential care. It aims to accomplish this by improving national data collection and reporting, establishing a Federal Work Group to disseminate best practices, promoting professional training in the fields of child protection, and advancing community-based alternatives to youth residential programs. For more information visit www.stopinstitutionalchildabuse.com
  

• Advocate for CA State Laws that protect youth
  
  California lawyers can, and should, take a national leadership role in ensuring that all youth within our state are protected from child abuse and exploitation.  State regulations and laws can more closely monitor the health, safety and welfare of all youth within the state than federal regulation. California has already taken a strong stance with AB 153, but additional work is needed to reduce the out-of-state placement of children through school districts.  With skyrocketing rates of adolescent mental health issues, California must continue to invest in viable solutions for children experiencing mental health crisis.
    

• Develop and Support Local Solutions and Community Investments 
  
  Local, community based change is a huge component of meaningful change for youth in treatment programs.  Cities such as Philadelphia have taken a lead by creating Youth Ombudsman positions.  Local government leaders should support the development of comprehensive community based health care solutions and child welfare initiatives that seek to keep children with family.  Local bar associations can educate their members on these issues.  And lawyers and judges can ensure that they are well-versed on the issue when facing it in their practices and courtrooms.