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Envisioning Second-Order Change in America's Responses to Troubled and Troublesome Youth


Lois A. Weithorn


University of California Hastings College of the Law

Summer 2005

Hofstra Law Review, Vol. 33, No. 4, 2005

Abstract:     
Every year hundreds of thousands of troubled and troublesome children experience out-of-home placements under the auspices of the mental health, juvenile justice, and child welfare systems. The annual rates of such placements were higher at the end of the twentieth century than at any time since comprehensive data were first available in the 1920s. Decades of legislative reform have failed to achieve overall reductions in use of institutions and other out-of-home placements for troubled and troublesome youth. What has changed, however, is the way in which these failures manifest. In recent years, for example, thousands of parents have relinquished custody of their children to the child welfare and juvenile justice systems after unsuccessful attempts to access appropriate mental health services. Hospitals report startling increases in the number of children brought to emergency rooms for behavioral problems. Large numbers of youth have run away or been ejected from their homes because of unresolved emotional or family problems. Admissions of youth to mental hospitals have continued to rise, despite hospital down-sizing and implementation of managed-care policies.

This Article examines and challenges our legal system's conventional patterns of response to troubled and troublesome youth. Reform efforts have ignored the overlap in the populations served by the primary youth service and intervention systems, and have continued to employ narrow system-specific constructions of the problems triggering legal intervention. These efforts have failed to respond effectively to the underlying needs of these youth, their families, and their communities. Thus, not surprisingly, unintended consequences¿ including increased use of one or more alternative institutional systems¿plague deinstitutionalization efforts. In response to today's manifestations of crises involving troubled and troublesome youth, policymakers are continuing to recycle the ineffective solutions of the past.

These ineffective policies rely on strategies of removal (of children from their homes and communities), confinement (in residential facilities and institutions), and exclusion (from the mainstream of society). As such, they are incompatible with core traditions in American law and society valuing the family's role in raising children, individuals' freedom from unnecessary restrictions of liberty, and social inclusion of persons with special needs. Furthermore, while the traditional interventions provide temporary containment in crisis situations, they fail to achieve the broader parens patriae and police power purposes that authorize them.

This Article sets forth a policy vision that rejects legal interventions grounded primarily in patterns of removal, confinement, and exclusion of troubled and troublesome youth. Rather, the proposed model favors evidence-based approaches that foster positive adaptation of children within their natural systems (i.e., within families, schools, and communities). Notably, empirical research reveals that those intervention approaches most faithful to our legal and social ideals of promoting children's family and community bonds are also the most successful at improving the problems that trigger legal intervention. Initial research findings also suggest that these approaches are less costly than are traditional out-of-home placements. Alert to the failures of past reform efforts, this Article proposes legal responses that transcend current system boundaries, reflect integrated policymaking and intersystem coordination, and shift financial incentives in a manner congruent with underlying policy goals.

Number of Pages in PDF File: 202

Keywords: juvenile justice, mental health, child protection, children, family, deinstitutionalization

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Date posted: February 28, 2009  

Suggested Citation

Weithorn, Lois A., Envisioning Second-Order Change in America's Responses to Troubled and Troublesome Youth (Summer 2005). Hofstra Law Review, Vol. 33, No. 4, 2005. Available at SSRN: http://ssrn.com/abstract=989836

Contact Information

Lois A. Weithorn (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States
415-565-4660 (Phone)
415-565-4865 (Fax)

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