Introduction
This chapter will review legal issues that have an impact on the development, administration, and operation of a juvenile holdover program. Included will be issues related to the authority to hold youth, liability, protection of client rights, use of restraints or preventing youth from leaving program, duty to report child abuse and neglect, State issues, compliance with State law, and parental rights.

By the conclusion of this chapter, readers will be able to:

• Identify the authority to establish a juvenile holdover program.

• Determine questions of liability to be discussed and determined per local policy.

• Identify questions to be asked in program planning process related to joint use of the physical facility.

• Identify potential areas of liability related to training, intake and assessment, and the use of volunteers.

• Understand the need to review local policy issues.

Authority to Hold a Youth in Care or Custody
The legal basis for holding a youth in a juvenile holdover program must be clearly established. It must be anchored by reference to particular enabling statutes of the State in which the program is located.

• Some placements may be defined as voluntary. The conditions that make a placement volun-tary will be defined by relevant statutes or regu-lations but generally include such variables as:

• The establishment of the age at which youth can make their own decisions.

• The requirements for authorization by a parent or guardian.

• A definition of who is authorized to make such a decision in the absence of a parent or guardian, and the conditions under which such a decision can be made.

In other placements, the youth will be held in a custody or detention status. The situations and the process by which a youth may be held in a custody status are also spelled out in State and Federal statutes or regulations (Juvenile Justice Delinquency Prevention Act, 1974). Program organizers or staff should identify and review the relevant laws and regulations and all the conditions that permit or restrict such detention must be listed. In addition, there may be different laws and promulgated administrative rules that determine the basis for temporary holds. A summary of the Juvenile Justice Delinquency Prevention Act, 1974 is provided in appendix B.

An area that requires careful attention is the authority of law enforcement to hold alleged offenders in custody pending the completion of an investigation process, or until the alleged offender can be transferred to the custody of another agent whose authority to hold is based upon different enabling legislation. If a juvenile holdover program is to keep a youth in a custody hold status on the basis of needing to complete an investigation, the ability to transfer custody to an intermediary, such as a juvenile holdover program, must be clearly established. It should be noted that most statutes governing this area include specific time frames to which programs must rigidly adhere.

In some situations, new or modified legislation or regulation may be required to enable a juvenile holdover program to meet its objectives and to respond effectively to the legitimate needs of children, youth, families, and the community. If so, support of State legislators must be solicited and model legislation must be drafted or a regulation must be amended.

All referral sources must have a clear understanding of the legal basis for the authority to hold or to provide care for a youth in a juvenile holdover program. They must understand that these limitations have had a major influence upon the development of admissions criteria and the admissions and discharge procedures. The agency or organization operating the program, and their administrators, must also have a thorough understanding of this information. Operational decisions must always reinforce compliance with statutes. These issues are at the core of vulnerability to legal liability.

Liability Issues
The first step in considering the liability issues involved in a juvenile holdover program is the determination of the authority for the establishment of the program. The existence of specific statutory authorization is not only reassuring, but usually gives specific guidance for the structure of the program. That level of legal guidance is not universal, however, and many jurisdictions are operating under the implied authority granted through the juvenile code: a legal status that is more complex. The legal genesis of a program should be carefully articulated. The planning and design of the operation of the program must be grounded in the statutory authority whether expressed or implied. If the authority is implied through the general application of the juvenile code, the code sections that are relied upon to provide authorization should be identified.

A narrative that describes the implications drawn from those statutes should be included in the organizational documents or order of the court establishing the program. A clear statement of the derivation of authority will decrease the likelihood of challenges to the existence of the program. Clear understanding of the establishment authority for the program will contribute to a better operational framework as well. The policies and procedures of operation should be written and organized in a manner that shows the applicability of the statute from which the authority is implied. The provisions of the statute must be clearly related to the program as a whole, as well as to the operational details.

At this point, questions related to liability require a determination of the legal status of the entity that operates the program as well as the entity that owns the program’s facility. A survey administered by the American Probation and Parole Association (1999) listed the following as providers of juvenile holdover programs:

• Juvenile court.

• Juvenile probation office.

• Volunteer group.

• Detention facility.

• Sheriff.

• Social services.

• Nonprofit organizations.

• Contracted services.

• Hospital.

• State agency.

• Police.

In that same survey, the facility locations of the juvenile holdover programs were listed as follows:

• Self-contained facility.

• Emergency shelter.

• Courthouse.

• Adult jail.

• Detention facility.

• Probation office.

• No facility.

• Foster home.

If ownership of the facility is with an entity other than the program administrator, the relationship between the two must be stated and the responsibilities clearly delineated. Basic questions to examine include:

• Who owns the property?

• What is the legal nature of the entity? Governmental, not-for-profit, private?

• Who will maintain the safe and sanitary condition of the property?

• Who will insure the property for damage and loss?

• Who will ensure or otherwise provide the liability coverage for personal injury resulting from the condition of the property?

If the entity owning the property is a governmental agency, an understanding of governmental immunity for that unit of government is necessary to help answer the questions about liability. The question of governmental immunity also applies to other issues and will be discussed later in this chapter. The questions listed above are normal tenant and owner issues that are usually addressed in leases. The complication here is that neither the owners nor program providers tend to think of their relationship as landlords and tenants. The perception is blurred because one, if not both, of the parties is a governmental unit. For example, if someone slips, falls, and breaks a leg, and the fall was caused by a broken step, who is liable for the injury resulting from negligence in not fixing the step?

The operation of a juvenile holdover program has several critical junctures from a liability standpoint. These points are where the potential legal liability of the program for failure to perform certain tasks or provide essential services seems greater. At the time the program accepts a youth for services, it has to have authority to hold that youth. During the intake and screening process, a specific reason why the a youth is being held must be stated and the basic level of his or her mental and physical health must be determined. Questions to be answered by the intake process include:

• Who is this youth?

• Who are the parents or legal guardians of this youth?

• Have the parents or legal guardians been located and notified?

• Is the parent or guardian required to give consent?

• Has the parent or guardian given consent?

• Why was the youth brought to the program?

• Does the youth have any injuries or health problems that need attending?

• Does the youth need food and water?

• Does the youth have any immediate personal hygiene needs?

• Does the youth have any disabilities?

• Has any one explained to the youth why and by whom the youth is being held?

• Was the youth legally taken into custody?

• Can this youth continue to be legally held?

• Does the youth fall within the age set by statute or regulation to be held?

• Has the youth committed an act for which the statute authorizes detention?

In essence, the intake and screening process must provide enough information to allow the formation of a reasonable belief that the youth was legally taken into custody and that the continued holding of the youth complies with the law.

Insurance
Whether the property is owned by a non-governmental entity or a governmental unit, the question of insurance should be addressed in the memorandum of agreement or the written document that outlines the terms and conditions of the program. The specific answers are not as important as making sure the issues are adequately reviewed. Equally important is including the agreed upon result in the written agreement. The agreement should list the kinds of insurance to be obtained and specify the entity responsible for obtaining the insurance.

Staff Harm
In considering liability for staff harm there are two broad divisions with which to start. One is the harm caused to the staff and the second is harm caused by staff. The finer points to be considered in the determination of liability are the conditions of employment or volunteering, and the nature of the employee or volunteer – whether governmental, public safety officer, private entity employee, contractor, or volun-teer. The employee or volunteer status is impor-tant, even more so when determining agency liability for harm or injury to another person.

Screening and Selection
The first protection and prevention strategy is to put appropriate screening and selection procedures in place. These should be required for staff, contractors (if they are in contact with the youth), and volunteers. No person should be placed in contact or a position of care or trust for youth without being screened and selected by appropriate standards. More often, jurisdictions require at least a criminal records check. Some suggested standards would include using a pre-employment screening instrument, checking references, and conducting a record check. A higher level would include personality screening and a determination of the applicant’s level of knowledge about human growth and development with an emphasis on child and adolescent issues. The negligent selection or hiring of an applicant can result in harm to a youth and in negative publicity or lawsuits. The danger of harm to a youth can be decreased by complying with statutes and regulations and by paying careful attention to the staff selection process.

Training
Once a staff person is selected, whether volunteer or paid, the person must be given adequate training. The requirements and duties of the position should be reviewed and the training must be sufficient to allow the person to understand and perform all duties and responsibilities of their position safely. Training should be provided on a regular basis to keep the staff current with program and youth needs. The training should include how to avoid injury inflicted by the youth, as well as how to ensure the safety of the youth. Staff training is discussed in more detail in chapter 8, “Staffing and Staff Training.”

Complaints
An additional issue is the procedure for hand-ling complaints of staff misconduct involving youth. All too frequently, staff members who work with youth are accused of misconduct. The allegations include behavior that consti-tutes discrimination, sexual harassment, sexual misconduct, sexual assault, physical assault, supplying alcohol and other drugs, and other mistreatment of youth in custody. Other allegations include failure to provide proper medical treatment or adequate supervision.

When allegations of misconduct are made, a policy that requires adequate investigation and appropriate response is a necessity. A procedure must be in place that provides for the reassign-ment of an adult who is the subject of certain kinds of complaints. The clear definition of the kinds of complaints that require reassignment should be articulated in the program policies and procedures. During the investigation of the complaint the accused adult should not have contact with a youth who has filed a complaint. There may be circumstances that require immediate suspension. No agency that provides care for youth can ignore accusations of misconduct. One reason is the prevention of harm to youth with whom the program is entrusted. The second is the liability that can result from failure to investigate a complaint adequately and respond appropriately. If there is a failure to act when an allegation is made, subsequent, similar incidents can have very serious consequences.

Transportation
Program organizers or staff will need to determine if transportation of the youth will be part of the programming. If so, planning for the transportation of youth can be divided into three components:

• Transportation of the youth to the juvenile holdover program.

• Transportation to services and education while at the juvenile holdover program.

• Transportation to return home or to another facility.

As a part of the planning process, decisions will be required such as:

• How will the transportation be scheduled and provided?

• Who will pay the costs?

• Who determines the need for the transportation?

• What insurance is needed?

Safety regulations should be reviewed. Procedures should be written for the transportation process. If volunteers or other non-family members will provide transportation, then adequate insurance coverage should be provided.

Immunity
Many States have some shields from liability for damages alleged to have resulted from official proceedings and actions. Most States still have some vestiges of what was once known as sovereign immunity. In England, the original legal doctrine was that one could not sue the king who was the sovereign. Therefore, the king was immune from lawsuits even if the government had caused harm. The United States adopted this doctrine. This meant that an individual could not sue the government for damages that were alleged to have been the result of the government’s actions unless the government agreed to be sued.

The issue of governmental immunity from lawsuits has been an active area of change by both legislation and case law. Most States permit lawsuits with varying jurisdictional requirements. The determination of whether there is tort claim immunity for the operation of the juvenile holdover program is a crucial budget consideration. Insurance is a cost that must be budgeted. If the agency providing the program is not a governmental agency, then the likelihood of any application of tort claims immunity is not large. If the operation of the holdover is a partnership or joint effort, then clear definition of which duties are performed by the governmental unit is imperative. Governmental immunity will certainly be limited to the portion of the holdover activity performed by the governmental agency.

However, another kind of immunity that affects the planning of liability protection is volunteer immunity. Some States have passed laws that protect volunteers from liability for certain kinds of volunteer work. Again, State-by-State determination of the law must be made by a competent attorney. The analysis should include the determination of the status of the person and the type of activity in which that person will be engaged. The applicability of such legislation referencing volunteers should be monitored for changes both in the statute, as well as in the case law.

Protection of Client Rights
The attitudes with which we set out to protect a youth’s rights are as important as the ways we seek to accomplish that protection. If the approach taken in the framing of policy and procedure is to protect these rights because it is the correct way to do things, success is more likely than if it is a perfunctory task. Staff and youth will benefit when the motivation is beyond the fact that the law requires us to do this. Youth learn how to be, think, and act like adults by watching the adults in their world. Thus, at the time a youth is brought to a juvenile holdover program, stressed, maybe frightened, it is important for staff to be calm and respectful of the youth. There is no reason or excuse to bully or demean a youth.

Confidentiality Concerns
The youth should be reassured that his or her privacy will be protected. This respect for the youth’s rights can be demonstrated by keeping the records in a confidential manner. This also means that information that could be incrimina-ting to the youth, unless it is freely volunteered, should not be coerced or obtained from the youth. The identity of a youth and the fact that he or she has been in the juvenile holdover program should be shielded from the public. That shielding should include staff members of the agency who do not need to know the youth’s status.

Policy and procedures should be written to ensure compliance in protecting the confiden-tiality of a youth’s identity and other informa-tion. A procedure should be developed identifying what information will be collected and maintained. The procedure should include who can receive what information, when information should be received, and in what manner the information will be transmitted. The procedure should ensure compliance with State statutes and regulations. Also, it should be determined whether the Federal Education Right to Privacy Act applies to any aspect of the operation of the program.

Records Maintained by Staff
Records maintained by juvenile holdover staff and volunteers serve several functions. Those functions include documenting what care and supervision are given to each youth, the well-being of the youth, and the progress made. Other functions may be to track staff effort and evaluate the effectiveness of staff activities. Information also may be needed to acquire or maintain adequate resources for the program. At a minimum, programs should maintain basic logs of the entry and departure of each youth, a summary of his or her activities, a listing of visitors, and narrative accounts of any incidents that occur while the youth is in the juvenile holdover program. Samples of admission and discharge records, shift summaries, and observation logs are provided in appendix D.

Other records may be required by statute, regulations, or the supervising authority, (e.g., medical and educational service records, if these services are provided). All information should have data privacy protections in place. Disclosure to other individuals and agencies must be in accordance with program policy and legally defensible. Records should be subjected to a validity and accuracy review.

Data Privacy
The compiling of data for reports to the funding authority, regulating authority, juvenile court, and prosecutor must be done following procedures that result in accurate data, while protecting the confidential information about youthful clients. The aggregation of data should follow accepted protocols that allow for testing of the data without violation of confidential safeguards. The computer system and network safeguards should be developed by a profession-al who understands the technological require-ments, as well as the legal requirements. The protection of information from those who are not authorized to such information is essential.

Youth Confrontation
A youth may be questioned to determine his or her identity and that of his or her parent or guardian. Health and safety information also may be gathered from the youth. If a juvenile holdover program is considered a custodial setting, a youth in the holdover program may not be confronted with accusations of committing acts that would be a crime if committed by an adult. Whether a nonsecure setting is custodial turns on the question of whether the youth believes that she or he can leave. For adults, the requirement of being advised of one’s rights before confrontation or questioning hinges on whether the adult is in custody. The same reasoning has been applied to youth as well (see Figure 4-1). The issue to decide is if the youth must be advised of Miranda rights. If, in gathering the information, the intention or result is to use it in evidence against the youth at a hearing, the youth should be advised of these rights and allowed to have meaningful consultation with his or her parent or legal counsel. Many states will not allow an effective waiver of rights by a youth unless the youth has consulted with his or her parent or guardian. By case law, the requirement that the adult have no adverse interest to the youth has been added.

In summary, the policy and the procedures of the program should be written to safeguard the well-being of the youth. The procedures should identify when the youth can be confronted, by whom, and how the information obtained will be used. When in doubt, unless there is an immediate concern for the well-being of the youth, the holdover staff should refrain from questioning the youth beyond the necessary intake information.

Searches
The legal permissibility of searches of the person, limited or full, depends upon the danger posed by the person, the probable cause, and whether the person is in custody. If the youth is regarded as being in custody, whether the program is secure or nonsecure, a search may be conducted for custodial purposes. The search should not be more invasive of the person than is needed to assure the safety and health of the youth and those around the youth. Searches by a juvenile holdover program staff person or volunteer should not be for the purpose of gathering evidence. If such a search is permitted, it should be done by a police agency, probation officer, or prosecutor’s investigator. In cases where law enforcement officers or probation officers are staff of the holdover program, the policy must clearly delineate the difference in responsibilities so that youth are treated fairly. The blurring of these roles can result in undesirable conse-quences. Those consequences can range from the mistrust of staff by the youth to the suppression of evidence in court.

Testing for drugs and other substances is a search. Testing for illness or disease may also be considered a search. This means that the youth has rights under the Fourth Amendment of the United States Constitution. Other sources of search rights include State constitutions, State and Federal statutes, and case law.

Drug testing is not a required element of basic juvenile holdover program. However, if drug testing is to be considered as an option, a written policy on drug testing parameters for the juvenile holdover program should include:

• What testing will be performed?

• What will be the conditions to determine the testing?

• Who will decide to administer the testing?

• Who will do the testing?

• What are the quality assurances of the accuracy of the administration of the tests?

• Who will be informed of the results?

• How will the results be used in decisions regarding the care of the youth?

The Office of Juvenile Justice and Delinquency Prevention has published a guide entitled Drug Identification and Testing in the Juvenile Jus-tice System (Crowe, 1998). This guide provides a detailed discussion of the development of drug testing in juvenile programs.

Restraining or Preventing from Leaving
Safety is the primary concern in formulating policies and procedures for a responding to threats from youth or their attempts to leave the juvenile holdover program. The safety of the youth, of other youth, the community, and the staff must be addressed. While the approaches by the holdovers vary in the restraint or prevention methods used, the question of which is more important – safety or the right to leave – seems easy. The youth is a child in the eyes of the law as well as in his or her level of functioning. The examination of the procedures for this issue should be done with regard to the safe keeping of the youth, not in the absolute right to run the streets. The law would not let them sit in the middle of the street.

The decision of how to restrain or prevent the youth from leaving has to include a determina-tion of the least restraint needed. Keeping a client under adequate surveillance, within sight and sound, could prevent the youth from leaving or otherwise getting into harm’s way. However, if a youth is violent and must be physically restrained, any equipment or device used must be scaled to the youth’s size. For example, a restraint chair improperly used could present a danger to the youth.

Duty to Report Child Abuse and Neglect
The duty to report child abuse and neglect should be in a written policy. Clear and complete procedures to comply with this policy should be given to each staff member, whether they are a volunteer or paid employee. Training in support of maintaining the effectiveness of this policy should be scheduled on a regular basis. While the details of when and how to report will depend on the specific requirements of State statutes and regulations, when abuse or neglect is suspected there should be no hesita-tion in reporting. Anytime an incident of abuse or neglect is suspected, a juvenile hold-over program must accept the responsibility of providing a safety net for the youth. At a minimum the procedure should include specific instructions that include:

• To whom the report is to be made (i.e., agency and contact person).

• What must be reported.

• How is the youth to be protected.

• How the report should be documented.

State Issues and Compliance with State Laws
Compliance with State and local law is a minimum expectation for any program work-ing with youth. The best way to be sure that the program is organized and operates in compliance with the law is to seek the advice of an attorney. It is recommended that the lawyer be one who is interested in youth law and competent in real estate and liability issues. An attorney’s review of the plans and documents at the planning stages of the program can save time and money later. As policies and procedures are developed involving the issues in this chapter, they should be reviewed by the attorney for compliance with the applicable law.

Because of the public’s concern with juveniles, and the fear of violence upon youth and by youth, juvenile law frequently changes in many jurisdictions. A good practice would be to have an annual review after the legislature adjourns to review the new laws and recent case law. This review would help the juvenile holdover program remain in compliance with State statutes and reduce the liability exposure. If the law changes and the program fails to make the necessary adjustments, a youth’s rights could be inadvertently violated and the liability increased to a juvenile holdover program.

Parental Rights
Our cultural attitudes that protect and cherish parental rights are reflected in statutes that require a high level of justification to take a youth into custody and hold the youth without parental consent. That deference to parental rights is substantial as evidenced by the detail with which State and territorial statutes set out parental rights, and the procedures necessary to annul those rights. Each jurisdiction has its own requirements but a general review of the statutes shows these basic requirements:

• A legal basis, as defined by the statute, must be established to take the care, custody, and control of a juvenile from the parent or legal guardian.

• The parent or guardian must generally be informed within a specific time period of the following:
  • Where youth is being detained.
  • Reason for holding the youth.
  • The legal rights of the parent(s).
  • The legal responsibilities of the parent(s).
  • The legal rights of the youth.
  • When the parent(s) will have an opportunity for meaningful conference with the youth.
  • Notice that the parent(s) may be entitled to counsel for themselves.

If the parent or a legal guardian cannot be identified or located, a guardian ad litem or court appointed special advocate will often be ordered for the youth. These are usually volunteers who have a strong interest in child welfare. They also must be provided with information about the youth. The circumstances vary that allow or require this kind of appointment, according to jurisdiction.

The APPA (1999) survey of agencies operating juvenile holdover programs indicated a substantial difference in the lengths of stay permitted in the programs. The range between the shortest stay of less than 24 hours and the longest permitted stay of more than one week means that contact with parents and parental involvement will vary accordingly. This variability in length of stay also will be a factor in the recognition and protection of parental rights.

A minimum standard should require each facility or program to have a written procedure in place to locate the parents or guardians and notify them of the youth’s whereabouts and the conditions under which the youth is being detained. An acceptable alternative could be a clear, written agreement with the agency delivering the youth that the apprehending agency will notify the parents or guardians. That agreement also should provide a procedure to advise parents or guardians of rights and other matters required by the law.

Another parent or guardian issue that a juvenile holdover program should consider is the visitation rights to confer with their youth. Some States, via case law for the most part, have defined meaningful consultation as private and with physical contact. Therefore, the physical facility or setting for a juvenile holdover program should allow adequate space to provide for the parental visitation.

Conclusion
The purpose of this chapter was to provide a broad overview of the legal issues that may confront juvenile holdover programs. Issues confronting the implementation and operation of juvenile holdover programs may not be significantly different from those of any custodial program for youth; however, the responses to them may vary according to local and State laws. Program organizers and staff are encouraged to seek legal counsel when developing policies and procedures for juvenile holdover programs to protect the program, staff, and youth.

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