Unaccompanied Youth and Private-Public Order Failures

• Author: Jordan Blair Woods
• Position: Assistant Professor of Law, University of Arkansas School of Law, Fayetteville
• Pages: 1639-1709

1639

Unaccompanied Youth and

Private–Public Order Failures

Jordan Blair Woods

ABSTRACT: Each year, approximately 1.7 million “unaccompanied youth”

under the age of 18 live on their own in homelessness or in other unstable

living conditions. Many of these youth ran away or were kicked out of their

families or child welfare placements. Others became homeless upon or soon

after being released from juvenile detention.

As this Article describes, the government responds to unaccompanied youth

through a complex web of family-centered interventions in both the child

welfare and the juvenile justice systems. Child welfare responses adopt a view

of unaccompanied youth as victims of negative family circumstances and

respond by altering their family environments—first through attempting to

repair the biological family relationship, and when that is not possible, by

providing youth substitute families through foster care and adoption. When

those family-centered approaches are not working, juvenile justice laws and

law enforcement policies and practices pressure unaccompanied youth to

reunite with their families (whether biological, foster, or adoptive) and allow

for their arrest and detention. In this regard, the government adopts a very

different view of unaccompanied youth as delinquent offenders when they do

not fit into family systems.

 Assistant Professor of Law, University of Arkansas School of Law, Fayetteville. I am

thankful for the helpful suggestions from Tendayi Achiume, Alena Allen, Michèl e Alexandre,

Erez Aloni, Nicole L. Asquith, William W. Berry III, Alexander Boni-Saenz, Tammy Castle,

Maureen Carroll, Steve Clowney, Beth Colgan, Sarah Davis, Maxine Eichner, Will Foster, Sharon

Foster, Brian Gallini, Carol Goforth, Sara Gosman, Christopher Green, Meredith Harbach, Irene

Oritseweyinmi Joe, Sarah Katz, Gwendolyn Leachman, Stacy Leeds, Elizabeth MacDowell, Nancy

Marcus, Jonathan Marshfield, Kaiponanea Matsumura, Tiffany Murphy, Cynthia Nance, Douglas

NeJaime, Jack Nowlin, Vanessa Panfil, Susannah Pollvogt, Laurent Sacharoff, Tim Tarvin, Alan

Trammell, Jace L. Valcore, and Brandon Weiss. I am also grateful for the feedback that I received

at the 2016 Family Law Scholars and Teachers Conference, the Critical Intersections of Crime

and Social Justice Conference, 2016 Midwest Law and Society Retreat, an d faculty workshops at

the University of Arkansas School of Law, University of Mississippi School of Law, and University

of Memphis Cecil C. Humphreys School of Law. I also wish to thank the University of Arkansas

School of Law library staff, and especially Lorraine Kay Lorne, for their research assistance. Thank

you to the editors and staff at the Iowa Law Review for their careful edits, insightful suggestions,

and hard work.

1640 IOWA LAW REVIEW [Vol. 103:1639

This Article shows that unaccompanied youth whose needs are not served

under family-centered child welfare responses are ultimately left vulnerable to

entering a destructive cycle of homelessness and involvement in the juvenile

and criminal justice systems. It further argues that the experiences of

unaccompanied youth, and unaccompanied LGBTQ youth in particular,

demonstrate the limits of the family-centered approach as a wholesale or

comprehensive solution to the child welfare needs of adolescent youth. The

shortcomings of this approach illustrate a need for a paradigm shift in child

welfare law and policy (and relatedly, juvenile justice law and policy) that

places greater emphasis on non-family-centered approaches to serve vulnerable

youth in need of help from the state, especially late-adolescent youth. Under

this new framework, child welfare law and policy responses would

conceptualize the agency and autonomy of unaccompanied youth in positive

and empowering terms, and provide greater space for support systems, skills,

and resources outside of family systems to help them achieve self-reliance and

self-actualization as adults.

I.INTRODUCTION ........................................................................... 1641

II. THEORIES OF UNACCOMPANIED YOUTH STATUS ........................ 1651

A.STRUCTURAL THEORIES ......................................................... 1652

1.Family Factors .............................................................. 1652

2.Economic Factors ........................................................ 1652

3.Social and Cultural Factors ......................................... 1654

B.DEFICIENT-AGENCY THEORIES ................................................ 1657

1.“Bad Kids” .................................................................... 1658

2.“Carefree Kids” ............................................................ 1659

3.“Sick Kids” .................................................................... 1659

III. CHILD WELFARE SYSTEM RESPONSES TO UNACCOMPANIED

YOUTH ........................................................................................ 1661

A.FAMILY-CENTERED PUBLIC REORDERING IN THE CHILD

WELFARE SYSTEM .................................................................. 1662

1.Historical Background ................................................ 1662

2.Contemporary Child Welfare Responses to

Unaccompanied Youth ............................................... 1667

B.CRITICISMS OF FAMILY-CENTERED PUBLIC REORDERING IN

THE CHILD WELFARE SYSTEM ................................................ 1671

1.Assumptions About the Agency and Autonomy

of Unaccompanied Youth .......................................... 1674

2.The “Traditional” Family and Child Welfare

Exclusions .................................................................... 1678

2018] UNACCOMPANIED YOUTH 1641

IV. JUVENILE JUSTICE SYSTEM RESPONSES TO UNACCOMPANIED

YOUTH ........................................................................................ 1683

A.FAMILY-CENTERED PUBLIC REORDERING IN THE JUVENILE

JUSTICE SYSTEM .................................................................... 1683

1.Unaccompanied Youth as Delinquent Offenders:

Arrest, Institutionalization, and Other Sanctions ..... 1684

i.Historical Background ............................................. 1684

ii.Contemporary Juvenile Justice Responses to

Unaccompanied Youth ............................................. 1687

2.Unaccompanied Youth as Crime Victims: Public

Funding for Unaccompanied Youth Programs

and Services ................................................................. 1692

B.CRITICISMS OF FAMILY-CENTERED PUBLIC REORDERING IN

THE JUVENILE JUSTICE SYSTEM .............................................. 1697

V. IMPLICATIONS AND FUTURE DIRECTIONS ................................... 1703

VI.CONCLUSION .............................................................................. 1709

I. INTRODUCTION

Consider the story of a teenager named Jack.1 During his senior year of

high school, Jack told his family that he was gay.2 At the time, Jack was living

with his mother and her new boyfriend, who became abusive and did not

accept Jack’s sexuality.3 Jack’s mom was not ready to end the relationship, but

wanted to find a safe home for him.4 She discovered a transitional living

program, which provided a supervised community living environment to

youth between the ages of 16 and 22 who were homeless or at risk of

becoming homeless.5 The program also helped youth build necessary life

skills to live independently as adults.6 Jack entered the program, stayed in

school, maintained a GPA in the top ten percent of his graduating class, and

got accepted to college.7

Jack’s success story, however, is rare. A teenager in Jack’s situation is more

likely to follow a path like Tracey’s.8 After Tracey told his family that he was

1. This story is adapted from real-life events. See Success Stories, STOPOVER, http://stopover

inc.org/services (last visited Mar. 14, 2018).

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. See GERALD P. MALLON, WE DON’T EXACTLY GET THE WELCOME WAGON: THE

EXPERIENCES OF GAY AND LESBIAN ADOLESCENTS IN CHILD WELFARE SYSTEMS 111 (1998).