Colorado Watch logo

After his parents’ ongoing domestic violence issues forced him out of his home, a Colorado Springs 11-year-old struggling with developmental disabilities and speech impediments lashed out with violent tantrums against his grandmother who had taken custody of him.

Rather than receiving the therapeutic and mental health services his former lawyer says he desperately needs, the boy has languished in lock up for more than 100 days, stuck in limbo as he waits for resolution of his menacing criminal delinquency charge.

The case highlights a bleak reality plaguing Colorado’s juvenile justice system, according to those familiar with the situation who spoke to The Gazette. Even though Colorado lawmakers have passed laws requiring the release from detention of youth who aren’t considered a community threat while their criminal delinquency cases are pending, a lack of resources and a crunch in safe alternative placements mean some youth remain locked up well beyond the intent of state law.

Civil rights lawyers and youth advocates find the situation distressing because kids who are detained while awaiting trial often can’t access therapeutic treatments and drug rehabilitation services that are available when they’re granted pretrial release or sentenced to an incarceration facility. Juveniles detained while their trials are pending generally can only access online schooling and end up going without specialized treatment plans that research shows can prevent them from slipping further into criminal behavior.

Research also shows an over reliance on detaining juveniles when they’re not a violent risk also can end up pulling kids further into criminal behavior.

The Colorado Springs child’s lawyer hoped her client would finally get the help he needed when he was briefly released from detention. The lawyer, appointed as a guardian ad litem to represent the child’s interests, convinced a magistrate to order El Paso County’s Department of Human Services to ensure the grandmother’s apartment was habitable and free of a bedbug infestation so mental health providers could start assessing the home and providing treatment.

But the county balked at the $10,000 cleaning cost and delayed taking any action. A local program that had agreed to provide services to the boy and his grandmother, impaired with her own disabilities, then backed out because the apartment remained ridden with filth. Soon, the boy was in trouble again, this time when older teens in the apartment complex allegedly began supplying him with stolen goods. He went back to pretrial detention.

By the time the 11-year-old’s case came before Magistrate Judge Gail Warkentin in mid-August for another status update, he could not attend the hearing because he needed medical attention due to self-harming behaviors. He had been deemed mentally incompetent to stand trial because of his own disabilities and significant communication impediments, according to testimony.

The magistrate ordered him to remain detained at the Zebulon Pike Youth Services Center in Colorado Springs, finding he was a “substantial risk of serious harm to the community,” with “no release plan at this point to mitigate risk.”

“If anywhere safe was identified for him to go, then they would be able to do that,” said S. Grace Williams, the attorney initially appointed as a guardian ad litem. “I generally feel like they just kind of refuse to find options for our kiddos that are in detention because they know they at least have a roof over their heads. But it’s not a quality placement at all. It’s not what we should be investing in.”

Colorado legislators changed the law two years ago with the intention of reducing instances of juveniles held in pretrial detention who aren’t a threat to their families or communities. But the change doesn’t appear to have fully addressed a problem of youth who remain detained because they’re waiting for adequate placements in their communities.

As many as a few dozen kids at any given time are left without community-based treatment and rehabilitative services after a court has deemed them releasable. Data provided to The Gazette spanning about a year showed the numbers of releasable youth in detention represented a daily average of 20% of the state’s 215 total daily pretrial detention bed capacity.

A July report by the Colorado Department of Human Services confirmed some kids remained stuck in lockup despite a judge ordering their release. The report’s snapshot looked at pretrial detention of 1,177 kids between July 1 and Dec. 31, 2022.

youth in detention

The report found that 389 of the juveniles, or 33% of those surveyed, remained in pretrial detention for one day or more after a judge found them suitable for their release, and 94, or roughly 8%, were detained more than 30 days past their releasable date. Another 15 of the kids remained in pretrial detention for more than 100 days after a judge determined they should be released.

The phenomenon worries those who work as defense attorneys and guardians ad litem for children in the justice system. They say separation from their families and communities exacerbates mental health struggles, increases their chances of involvement in the justice system again and makes them more likely to disengage from school when they return.

youth in detention 2

Kids in pretrial detention get only limited support during their stay, said Nicole Duncan, an attorney and founder of Duncan Youth Legal Services. There are only a handful of therapists in the state’s pretrial detention facilities, and those on hand don’t do the specialized intensive therapies that can change the trajectory of a kid on the wrong path, she stressed.

Former public defender and juvenile attorney Nicole Duncan references a stack of books at her downtown Denver office on Wed, Sep 6, 2023, that she uses as inspiration when working with her young clients. (photo by Liz Copan/special to The Denver Gazette)

LIZ COPAN

“They are not receiving services when they are in custody, pre-adjudication,” Duncan said of the youth she’s represented. “What they have is school, GED programming, some recreation, like basketball and watching TV, and sometimes they get visits with families, but that’s not always guaranteed because of transportation and different things like that.”

Minna Castillo Cohen, director of the state’s Office of Children, Youth and Families within the human services department, said Colorado’s pretrial detention isn’t equipped to provide long-term behavioral health and treatment services for juveniles because it’s built for short-term stays. She believes resources for long-term services are best spent on community-based providers.

“We shouldn’t be spending additional resources to provide kids care in a location they should not be,” she said. “They’re only here placed in lieu of an opportunity to go somewhere else.”

Reforms meant to keep children out of community group home settings when they don’t need such intensive care and could be better served in less disruptive options, such as kinship foster care, also have shrunk the number of residential care beds, Castillo Cohen said. The state had just 243 kids in community congregate care settings in July of this year, she said. More than 1,600 kids were in that care setting in 2007.

State officials have bolstered community providers for troubled youth in recent years by increasing Medicaid reimbursement rates and piloting targeted care projects, she said, but she acknowledged more work still needs to take place.

State officials still are pushing to hike reimbursement rates for those kids with acute and complex needs, and they’re also studying how to attract more workers into the field and how to improve training, she said. The state also is working to overhaul how it pays providers, in part because Medicaid will only pay for the costs of medical care and treatment for troubled kids. It leaves those responsible for the kids with the bill for “room and board” if a kid isn’t involved with the child welfare system. Castillo Cohen said that results in kids pushed into the child welfare system in order to access services.

“We have a pretty lengthy strategic plan around increasing provider capacity within communities so we can move young people out of the detention setting and on into the treatment setting so that they can begin to have that treatment need addressed,” Castillo Cohen said.

A March 2023 report by The Sentencing Project, a Washington-based nonprofit that advocates for alternatives to incarceration, argues youth confinement has racial and ethnic inequities, and that evidence shows it harms physical and mental health, is a barrier to success in education and work and can expose children to abuse.

It echoes a 2013 report by the Justice Policy Institute, a Washington-based nonprofit that believes juveniles are over-incarcerated. The institute’s report also says grouping youth involved in delinquent behavior together has a negative effect on their behavior. Detention pulls kids deeper into the criminal justice system and can interrupt natural aging out of delinquency, the study argues. The report was republished by the U.S. Department of Justice’s Office of Justice Programs.

The report cited a 1999 study in Arkansas of recidivism among incarcerated youth. Previous incarceration appeared to increase the odds of a return back to the state’s Department of Youth Services by 13.5 times. It was a greater predictor of recidivism for kids than carrying a weapon, gang membership or broken relationships with parents, according to the report.

Elsewhere, the issue of youth remaining in pretrial detention after a judge has ordered their release has resulted in litigation. In January, lawyers in Illinois filed a class-action lawsuit alleging children who become wards of that state have for years been wrongly confined to juvenile detention after a judge ordered their release, depriving them of the “everyday joys, experiences and opportunities of childhood.”

A series of 30 one-day snapshots between March 2022 and March 2023 provided to The Gazette show Colorado’s juvenile justice system had an average of about 43 kids, per day, in pretrial detention during that period who had been found releasable. Among the snapshots, the state recorded the highest number of kids in that status at 62 on Jan. 26 this year.

The 4th Judicial District, which includes El Paso and Teller counties, had the highest count of youth remaining in detention after adjudication as releasable out of the state’s 22 judicial districts, the records show. At times more than 20 kids adjudicated as releasable remained in pretrial detention in the 4th Judicial District, according to the daily snapshots The Gazette reviewed.

The recent study by the state’s department of human services found youth stayed in detention an average of 20.41 days between being deemed releasable and their release.

Colorado has 15 juvenile detention centers for kids beginning at age 10 and up to age 21, both for detaining youth in the pretrial stage of their cases and for holding kids serving sentences.

Reasons for children staying in detention more than a day after a court deemed them releasable could include waiting for a placement, a co-sign on a personal recognizance bond, or waiting for extradition to another state, the study reported, adding that no system currently exists to determine why children aren’t accepted into a lower residential care setting when that’s been ordered by a judge.

Duncan, the lawyer who represents kids in juvenile delinquency court proceedings, said she believes any instance of holding a child after they have been deemed releasable violates Colorado’s law. She’s also frustrated by the state Department of Human Services’ seeming characterization that reasons other than a need for placements have significantly contributed to the phenomenon of kids staying in detention.

Former public defender and juvenile advocate Nicole Duncan attends to meetings and case files from her office in downtown Denver last week. Duncan stresses the importance of providing her young clients adequate support and resources outside of detention.

LIZ COPAN, Special to the gazette

“The lack of accountability just allows for this to continue on. And the people that suffer are the kids,” she said.

Castillo Cohen countered that instances of children staying in pretrial detention when they aren’t considered a community threat comport with state law if a judge orders a kid to remain detained until a suitable residential placement is found.

“They should be in the least restrictive placement possible. But the judge has said that they cannot be released from detention until we can find them that residential treatment setting,” she said.

The state human services department’s study surveyed local judicial district officials who coordinate community services for juveniles, county officials and social service workers. They reported that a lack of appropriate placement options, waitlists for services and a lack of adequate inpatient substance use treatment posed the main barriers to helping juveniles in their communities.

The study also found that more than a third of the 1,177 youth in the juvenile justice systems whose cases were reviewed also had either an open assessment or a case with a county child-protective agency during or after their detention stay, suggesting turmoil in their families and potential peril in their homes.

Earlier research by the Colorado Department of Human services shows juveniles who are engaged in both the juvenile justice system and the child-protective system cost the state an average of $45,414 in services while children solely engaged with the child-protective system only cost an average of $11,324. The kids dually impacted by both systems end up as runaways more than 20% of the time, their whereabouts unknown, while those who only are engaged by the child-protective system runaway less than 3% of the time.

The shortage of available spots for juveniles facing criminal charges has been exacerbated by budget decreases for “step-down” services by providers contracting with the state, which in large part was spurred by the 2021 closure of the Ridge View Youth Services Center center, experts say. Earlier this year the Colorado Department of Human Services asked the legislature’s Joint Budget Committee for a $1.8 million decrease for step-down services, which provide housing and treatment for youth transitioning out of incarceration in the DHS system.

A Joint Budget Committee analysis also said caseloads with contracted providers have decreased in recent years because of an increase in serious cases that results instead in detaining those kids in state-run facilities.

The state ended its contract with Ridge View in Watkins, which had a school and provided behavioral health treatment, after allegations of abuse, neglect and instances of kids running away persisted for years. The facility had 32 bed at the time it closed.

At the same time the Division of Youth Services earlier this year also asked lawmakers to raise the state’s pretrial detention bed cap from 215 to 249 to address instances of the number of detained kids inching toward capacity.

Colorado capped the statewide number of detention beds in 2003 at 479. The legislature has lowered it every few years up to 2021, where the cap now sits at 215.

The legislature cut the cap from 327 to 215 in 2021 through Senate Bill 71. DHS says the state came close to its bed limit for the first time in 15 years, reaching 208 at its highest point in November 2022, according to a JBC staff analysis.

Individual facilities may also approach their capacity limits at a given time, requiring them to transport youth to other facilities for often-short stays in detention.

The request to raise the cap on detention bed space frustrated policy advocates at the ACLU of Colorado, who said the state should put its resources toward more treatment and community placements for kids rather than increasing the bed cap.

“If they’re there for significantly longer than they need to be, and what they need is a different setting with better support in a placement that doesn’t exist because we stopped funding it as a state, anything that happens in that kid’s future is our fault as a state,” said Anaya Robinson, the ACLU’s senior policy strategist.

The bed cap increase did not pass. But lawmakers passed a measure late in the session that included nearly $2 million for the Department of Human Services to distribute to residential facilities willing to place kids.

The bill also included about $1.3 million for the department to create 22 emergency detention beds. They can be used when a judicial district has no beds available and don’t count toward the state’s pretrial detention bed cap, but use of an emergency bed requires a court order.

“We tried to put a lot of restrictions on those, because we want to make it hard for them to use,” Robinson said. “We want them to be releasing the kids that should be released before using emergency beds.”

On Tuesday, another court hearing was held for the Colorado Springs 11-year-old still detained at Zebulon Pike Youth Services Center. By that time, El Paso County’s Department of Human Services finally had moved to clean the grandmother’s apartment with a contracted company. Another fumigation for bed bugs still was pending.

Officials with the El Paso Department of Human Services reported they had twice tried to evaluate the 11-year-old at Zebulon Pike to help determine a proper placement for him, but he had refused to participate. He shut off his computer when the evaluation first began and then turned off his microphone during the second attempt, they reported.

Officials reported they remained committed to getting services patched in for the grandmother to help stabilize her apartment and coordinate her grandson’s eventual release to her, while acknowledging that “that has been a struggle to get that in place.”

A new guardian ad litem had been appointed to represent the 11-year-old’s interests because the former lawyer working in that role had a conflict of interests because she represented teens that had become potential co-defendants for allegedly supplying him with stolen goods.

Magistrate Warkentin set a new court hearing for 10 days out to hear a motion filed in the case alleging that the El Paso County Department of Human Services had not taken “reasonable efforts” to find appropriate community services for the 11-year-old that would allow him to be released from detention. The magistrate also set a hearing for more than a month later, in October, to determine if the 11-year-old had been restored to competency so he could stand trial.

The boy would continue to remain in detention.