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American Juvenile Justice and Child Welfare System Reforms Addressing FASD

Howard DavidsonKathryn KellyHoward Davidson, Director, Center on Children and the Law, American Bar Association
Kathryn (Kay) Kelly, Project Director, FASD Legal Issues Resource Center, University of Washington

Summary: As juvenile courts become more aware of the presence of FASD in their dependency and delinquency caseloads, efforts to modify practices to improve outcomes have grown.

Awareness of the link between FASD and court involvement of children, youth, and families is relatively recent. In 1996 the University of Washington Fetal Alcohol and Drug Unit (FADU), founded by Ann Streissguth, released a Centers for Disease Control funded study documenting the prevalence of behavioral issues and victimization of those with FASD. The research revealed that among the subjects, all of whom had been diagnosed with brain damage from prenatal alcohol exposure, about 60% had gotten into trouble with the law, and most for the first time as juveniles. The study also found 72% of those with FASD had experienced physical or sexual abuse.

As juvenile courts become more aware of the presence of this disability in their dependency and delinquency caseloads, efforts to modify practices to improve outcomes have grown. In 2008 the Canadian Department of Justice, in collaboration with the Department of Justice, Government of Yukon, convened a national conference in Whitehorse, Yukon Territory, on access to justice for individuals with FASD. The conclusion by those attending (including one of the authors of this article), was that improving awareness of this issue is the most important step in addressing access to justice for individuals with FASD.

When one of the conference organizers, Rod Snow, became president of the Canadian Bar Association (CBA) in 2010, he introduced a CBA resolution calling for improved awareness of FASD within the Canadian criminal justice system and for changes to ensure access to justice for these disabled individuals. One of the outcomes of passage of that resolution was the formation of a joint CBA-Ministry of Justice Committee to collaborate on recommendations to the provincial, territorial and federal justice ministries. These recommendations were presented in November 2013 at the justice ministries meeting in Whitehorse.

Another outcome of the CBA resolution was development and passage, in August 2012, of the American Bar Association’s FASD resolution. This resolution, sponsored by the ABA Commission on Youth at Risk and developed by the ABA Center on Children and the Law, calls for training on FASD for those who work in the courts. The ABA FASD resolution reads in its entirety:

Resolved, That the American Bar Association urges attorneys and judges, state, local, and specialty bar associations, and law school clinical programs to help identify and respond effectively to Fetal Alcohol Spectrum Disorders (FASD) in children and adults, through training to enhance awareness of FASD and its impact on individuals in the child welfare, juvenile justice, and adult criminal justice systems and the value of collaboration with medical, mental health, and disability experts.

Further Resolved that the American Bar Association urges the passage of laws, and adoption of policies at all levels of government, that acknowledge and treat the effects of prenatal alcohol exposure and better assist individuals with FASD.
(The resolution text and a comprehensive background report that accompanied it can be found at the ABA website.)

Additional resources to aid in encouraging justice system reform are available. Law journals have been addressing these issues. In 2010 Public Defender William Edwards was asked by Professor Eric Drogin, then editor of the Journal of Psychiatry and the Law, to guest edit an issue related to FASD and the law. There was wide interest in response, and two entire issues on FASD were published: Journal of Psychiatry & Law Winter 2010 and Journal of Psychiatry & Law Spring 2011.

In 2003 the FASD Legal Issues Resource Center website was established by the University of Washington’s FADU—a website now hosted and maintained by the ABA Center on Children and the Law. It contains a wide range of materials about FASD and the law, including summaries of state and federal court decisions. Included are several child custody cases in which diagnosis of FASD of either the child or the parent played a critical role in case outcomes.

On June 13-14, 2013, as a direct result of passage of the ABA Resolution, the US Department of Justice through its Office of Juvenile Justice and Delinquency Prevention (OJJDP) convened an FASD “listening session” in Washington, DC. Representatives of 30 organizations of legal, court, and justice system professionals gathered. The listening session, under the auspices and with the support of the US Department of Justice, included a day and a half of learning about the impact of FASD on various disciplines and developing an action plan to promote further participation in FASD education and training. The action plan and a report on the listening session is expected in early 2014, with the goal of engaging organizations and individuals nationwide to recognize and understand this disability, and to modify court procedures and practices for the benefit of those with FASD. If the courts are to be fair, and all those served provided equal access to justice, then the disabilities of those involved need to be identified and responded to appropriately. Lawyers and judges are the key players in access to justice, and as a beginning on networking around this issue, an international email list of more than a hundred lawyers, judges and others concerned with FASD has been developed (one can join by sending an email to this address). Training on FASD for court professionals, as described in Chief Judge Snell’s Judges’ Page article, should be undertaken throughout the justice system.

For assistance in identifying FASD experts in your community, please contact Kay Kelly.

Author biographies:

Howard Davidson, JD, has been actively involved with the legal aspects of child protection for almost 40 years. He has directed the American Bar Association’s Center on Children and the Law, leading a twenty 20-person staff in work on child welfare law and policy improvement, since its 1978 establishment. Prior to his ABA tenure he directed a pioneering Children’s Law Project in the early 1970’s at Greater Boston Legal Services. He has chaired the U.S. Advisory Board on Child Abuse and Neglect, is a founding board member of the National Center for Missing and Exploited Children and is also on the governing boards of ECPAT-USA, a national law and policy reform organization focused on child trafficking and sexual exploitation, and the National Foster Care Coalition. He recently served on a National Academy of Sciences/Institute of Medicine Child Maltreatment Panel and is an advisor to the National Center for the Review & Prevention of Child Deaths.

Kathryn (Kay) Kelly is the project director of the FASD Legal Issues Resource Center at the University of Washington in Seattle. The center is a part of the Fetal Alcohol and Drug Unit (FADU) within the University of Washington Health Services Administration and is a joint project of FADU and the UW School of Law. As project director, Kelly works with judges, attorneys and family members in dealing with the wide range of issues that arise when individuals with fetal alcohol spectrum disorders (FASD) are charged with criminal offenses, either in juvenile or adult court. Kelly provides training on FASD/legal issues and FASD/addiction and has done so throughout the US as well as Canada, the United Kingdom, Northern Ireland, The Netherlands, Portugal, Iceland, Norway, Sweden, New Zealand and Australia.

Kelly worked with ABA officials and local bar association leaders to bring about the adoption, Aug. 7, 2012, of the ABA FASD resolution urging training regarding this disability for judges, attorneys and other court professionals as well as the passage of laws and policies to better assist those with FASD.


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