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

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, Michèle 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, and 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. S TRUCTURAL T HEORIES ......................................................... 1652 1. Family Factors .............................................................. 1652 2. Economic Factors ........................................................ 1652 3. Social and Cultural Factors ......................................... 1654 B. D EFICIENT -A GENCY T HEORIES ................................................ 1657 1. “Bad Kids” .................................................................... 1658 2. “Carefree Kids” ............................................................ 1659 3. “Sick Kids” .................................................................... 1659 III. CHILD WELFARE SYSTEM RESPONSES TO UNACCOMPANIED YOUTH ........................................................................................ 1661 A. F AMILY -C ENTERED P UBLIC R EORDERING IN THE C HILD W ELFARE S YSTEM .................................................................. 1662 1. Historical Background ................................................ 1662 2. Contemporary Child Welfare Responses to Unaccompanied Youth ............................................... 1667 B. C RITICISMS OF F AMILY -C ENTERED P UBLIC R EORDERING IN THE C HILD W ELFARE S YSTEM ................................................ 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. F AMILY -C ENTERED P UBLIC R EORDERING IN THE J UVENILE J USTICE S YSTEM .................................................................... 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. C RITICISMS OF F AMILY -C ENTERED P UBLIC R EORDERING IN THE J UVENILE J USTICE S YSTEM .............................................. 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). 1642 IOWA LAW REVIEW [Vol. 103:1639 gay, he was sent to live in a group home. 9 He bounced between four group homes in six months. 10 At each group home, he was teased, tormented, and harassed because he was gay. 11 After he could no longer take the abuse, Tracey left his last group home to live on the streets. 12 He lived with friends, slept on people’s sofas, and sold his body for sex to survive. 13 At one point, he “lived in an abandoned trailer truck with ten other people, [and] slept in railroad tunnels.” 14 As bad as it got on the streets, Tracey found the group homes to be much worse. 15 Although Jack and Tracey’s stories follow very different trajectories, their shared separation from their families is not uncommon. Each year, approximately 1.7 million youth under the age of 18 live on their own in homelessness or other unstable living arrangements for some amount of time. 16 Over 130,000 “unaccompanied youth” 17 endure these inadequate living conditions for one month or longer, 18 and many never return home. 19 Many of these unaccompanied youth were kicked out of their homes or ran 9 . Id. 10 . Id. 11 . Id. 12 . Id. 13 . Id. 14 . Id. 15 . Id. 16 . An Emerging Framework for Ending Unaccompanied Youth Homelessness , NAT’L ALLIANCE TO END HOMELESSNESS (Mar. 6, 2012), https://endhomelessness.org/resource/an-emerging-framework-for-ending-unaccompanied-youth-homelessness. These figures likely underestimate the actual number of unaccompanied youth. Different definitions of “youth” and what it means to be “unaccompanied,” coupled with the fact that unaccompanied youth are a transitory and difficult population to identify, frustrate the ability to obtain a true estimate. Abigail English, Youth Leaving Foster Care and Homeless Youth: Ensuring Access to Health Care , 79 TEMP. L. REV. 439, 442–43 (2006); see Yvonne Vissing, Homeless Children and Youth: An...