PROMOTING HEALING AND AVOIDING RETRAUMATIZATION: A PROPOSAL TO IMPROVE MENTAL HEALTH CARE FOR DETAINED UNACCOMPANIED MINORS THROUGH A BEST INTERESTS OF THE CHILD STANDARD.

• Author: Babetski, Francesca J.

TABLE OF CONTENTS INTRODUCTION 1556 I. THE CIRCUIT SPLIT 1559 A. A.M. v. Luzerne County Juvenile Detention Center 1559 B. Displacing the "Deliberate Indifference" Standard in Doe 4 v. Shenandoah Valley Juvenile Center Commission 1563 II. NEITHER SIDE OF THE CIRCUIT SPLIT RESOLVES THESE CLAIMS IN A CONSTITUTIONALLY SUFFICIENT WAY 1567 III. RECOMMENDATION FOR A LEGISLATIVE SOLUTION IMPLEMENTING A "BEST INTERESTS OF THE CHILD" STANDARD 1569 A. Congress Should Codify the Best Interests Standard 1570 B. How the Best Interests Standard Would Function in Practice 1576 IV. ADDRESSING POTENTIAL COUNTERARGUMENTS 1577 A. Why This Urgent Problem Requires Resolution 1578 B. Why Congress Should Not Simply Uphold the "Substantial Departure from Professional Judgment" Standard 1579 C. Why a Legislative Solution Will Be More Effective than a Judicial One 1580 CONCLUSION 1581 INTRODUCTION

The boy to whom the United States federal court system would one day assign the dispassionate moniker "John Doe 4" was born into a life of violence in Honduras. (1) Growing up without his parents, Doe 4 witnessed brutal murders from the time he was about eight years old, and he himself was assaulted on at least one occasion with a machete. (2) As a result of these experiences, Doe 4 and a friend decided their only chance to survive was to come to the United States. (3) During and after the journey across the border, Doe 4 experienced further violence, including at the hands of Customs and Border Protection officers. (4)

After his arrest, Doe 4 was passed around a couple of detention centers before he arrived in December 2017 at the Shenandoah Valley Juvenile Center in Staunton, Virginia. (5) A doctor at the facility almost immediately diagnosed Doe 4 with post-traumatic stress disorder (PTSD) and attention-deficit/hyperactivity disorder (ADHD). (6) Facility staff also observed Doe 4 engaging in self-harm on multiple occasions, causing the same doctor to declare that Doe 4 had a "medium risk" of committing suicide. (7) In response to this information about Doe 4's mental health, clinic staff provided him with weekly counseling sessions. (8)

On its surface, perhaps, the story seems straightforward. The situation at the facility was far more dire, however. Due to his mental health conditions, Doe 4 frequently acted out. (9) Clinic staff responded to these incidents by restraining Doe 4, isolating him from the rest of the center population, or both. (10) On one occasion, Doe 4 claimed he told the person restraining him that he could not breathe, only for the staff member to respond, "Good." (11)

Unfortunately, Doe 4's story is far from unique. Several other children who had been detained at Shenandoah Valley reported similar treatment. (12) The problem exists on an even larger scale, however. Every year, tens of thousands of children in the United States are held somewhere besides their homes. (13) According to one estimate, almost seventeen thousand of those are confined to detention centers--like Shenandoah Valley--that fall somewhere on the spectrum between prisons and treatment facilities. (14) Many of these juveniles have mental health concerns for which they require support from the facilities in which they are confined. (15) Juveniles in detention centers retain their constitutional rights to "medical and mental health care." (16) However, as Doe 4's story makes clear, these rights are not always respected. (17)

In the 2004 case A.M. v. Luzerne County Juvenile Detention Center, the Third Circuit held that juveniles alleging inadequate access to mental health care in detention facilities must show that the facility's staff acted with "deliberate indifference" toward their needs. (18) The Fourth Circuit disrupted this status quo when it heard Doe 4's case in 2021 and applied a professional judgment standard, deciding that such juveniles need only show that the staff members' actions constituted a "substantial[] depar[ture] from accepted professional standards." (19) In his dissent, Judge J. Harvie Wilkinson argued that the majority had not based its holding on any case or statutory law but instead attempted "something we are utterly unqualified to do--determine what constitutes acceptable mental health care." (20) Shenandoah Valley petitioned the Supreme Court for certiorari in July 2021. (21) In December 2021, the Court denied the petition. (22)

Part I of this Note will describe the circuit split. It will provide background on the A.M. and Doe 4 cases, including an explanation of the major precedents on which the Third and Fourth Circuits based their respective decisions. Then, Part II will argue that A.M. and its deliberate indifference standard cannot appropriately be applied in cases involving detained unaccompanied minors, also called Unaccompanied Alien Children (UACs). This almost twentyyear-old standard does not consider the latest information about immigration policy and the unique mental health needs of UACs such as Doe 4 who came to the United States to escape traumatic situations in their home countries. At the same time, though, Part II will explain why Doe 4's substantial departure from professional judgment standard, which the Supreme Court declined to review, is still not the correct solution to the UAC-specific problems that AM.'s standard does not cover. Part III will recommend possible alternative standards that would be better equipped to practically and efficiently ensure that detained UACs receive the mental health care to which they are entitled. Finally, Part IV will acknowledge and refute several potential counterarguments.

1. THE CIRCUIT SPLIT

   In 2004, the Third Circuit decided A.M. v. Luzerne County Juvenile Detention Center. (23) Relying principally on Fuentes v. Wagner, a case concerning the treatment of an incarcerated adult, the court held that deliberate indifference was the appropriate standard by which to judge the legal sufficiency of mental health care provided to a detained juvenile. (24) Seventeen years later, the Fourth Circuit declined to follow A.M. in Doe 4 v. Shenandoah Valley Juvenile Center Commission, a suit that arose from a class of detained UACs' claims of inappropriate mental health care. (25) Instead, it took inspiration from the Supreme Court case Youngberg v. Romeo, in which the plaintiff was an intellectually disabled adult confined to a staterun hospital, and instituted a substantial departure from professional judgment standard. (26) This Part will describe the resulting circuit split in further detail.

   1. A.M. v. Luzerne County Juvenile Detention Center

      Following an arrest for indecent conduct, A.M. was confined to the Luzerne County Juvenile Detention Center in Pennsylvania. (27) Staff at the center knew that he had existing mental health concerns, including ADHD, "anxiety disorder, depressive disorder, atypical bipolar disorder, and intermittent explosive disorder." (28) While at the center, A.M. repeatedly sustained physical injuries when fellow detainees assaulted him. (29) This abuse negatively impacted A.M.'s mental state, but it was not the only factor that contributed to his overall decline during his time at the center. (30) He did not receive his ADHD medication for a few weeks, and he inconsistently received psychiatric services. (31) After a court order sent A.M. to a different facility, he informed a counselor there about his experiences, prompting a chain of events that ultimately gave rise to this suit against various Luzerne County administrators and staff members. (32)

      Using 42 U.S.C. [section] 1983 and Pennsylvania tort law, A.M.'s suit alleged a violation of his Fourteenth Amendment substantive due process rights. (33) Specifically, his claim comprised four counts, two of which are within the scope of this Note. (34) The first count's relevant allegations were that Luzerne County, its main administrator, and its deputy chief of juvenile probation had hired improperly trained staff and failed to institute "policies and procedures to address the mental and physical health needs of residents." (35) In both respects, the United States District Court for the Middle District of Pennsylvania granted summary judgement to Luzerne County and its employees, ruling that A.M. had not provided sufficient evidence to show that the staff had acted with deliberate indifference. (36) It reached the same conclusion regarding A.M.'s second claim that the staff had not stepped in quickly enough to stop other detainees from assaulting him, notably citing a Third Circuit case about staff intervention in a prison altercation. (37)

      Although the Third Circuit remanded the case due to unresolved factual questions, it held that the district court had been right to use the deliberate indifference standard to evaluate A.M's claims. (38) In arriving at this conclusion, the Third Circuit principally discussed Fuentes v. Wagner, a case upon which the district court had also relied. (39)

      The plaintiff in Fuentes was incarcerated pending his sentencing on federal drug charges when he allegedly threatened prison employees during a physical altercation. (40) His [section] 1983 claim arose from the employees' decision to place him, handcuffed and shackled, in a restraint chair for eight hours following the incident. (41) Although the staff followed all of the prison's policies associated with such a restraint, Fuentes claimed that this punishment constituted excessive force and caused him physical injury. (42)

      The deliberate indifference standard entered the discussion when the Third Circuit tried to reconcile Fuentes's competing claims that his time in the restraint chair was both cruel and unusual punishment under the Eighth Amendment and a violation of substantive due process under the Fourteenth Amendment. (43) The court cautioned, however, that the Fourteenth Amendment, not the Eighth, governed the situation because the Eighth Amendment's protection against cruel and unusual punishment...