March 26, 2009

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Santa Clara County Jails Youngest Child Ever

By Karen de Sa  |  Mercury News  —

One of the youngest children ever to be locked up in Santa Clara County spent five days in juvenile hall late last month, the Mercury News has learned, an unusual detention of a 10-year-old that has top officials scrambling to correct a case they describe as deeply disturbing.

“In hindsight, all involved believe that this was a mistake,” Presiding Juvenile Court Judge Patrick Tondreau said in an e-mail. “Having someone this young brought to the Hall is an extremely rare situation, and this case had confusing and complex facts.”

Tondreau, Probation Chief Sheila Mitchell, Social Services Agency head Will Lightbourne and the supervising Public Defender responsible for juvenile cases, Andrea Flint, all confirmed that detaining a 10-year-old was highly inappropriate.

But department heads appear to be pointing the finger at one another when it comes to determining who made the decision to lock up the boy and his 11- and 12-year-old siblings, and why five days went by before they were released.

The children were detained in the Guadalupe Parkway juvenile hall from Feb. 20, a Friday night, until the following Tuesday evening. All three came from a long and wrenching experience with the foster care system, where they had been placed due to abuse. They became crime suspects only later, following allegations they sexually abused a 5-year-old sibling, numerous sources familiar with the confidential case said.

The three older children were taken from the juvenile hall by county social workers just after 6 p.m. Feb. 24 and delivered to the county shelter for abused and neglected children, according to probation officials. The hall is usually reserved for 13- to 18-year-olds facing charges ranging from vandalism to murder.

In the wake of the jailing, Judge Tondreau said the court, the probation department and the county’s child welfare agency are actively adjusting protocols involving very young children, while searching for bed space outside juvenile hall should similar cases arise. “Our goal is for this not to happen again,” he said.

Meanwhile, statewide juvenile justice experts reacted with outrage to the case.

Dan Macallair, executive director of the San Francisco-based Center on Juvenile and Criminal Justice, said in his more than 25 years in the field he has never heard of a similar situation. Macallair said third and fourth-graders can easily and quickly be damaged by proximity to older, more hardened offenders. “You never put someone at that tender age with hard-core delinquents,” he said. “It just makes no sense.”

Youth Law Center attorney Sue Burrell added that while five days may not seem like long to an adult, for a child behind bars the experience can be life-altering. “I’m outraged,” she said upon learning of the case. “Federal law prohibits locking up child welfare system children to begin with, and locking up a 10-year-old is a double whammy.”

Lightbourne, whose agency oversees the county’s social workers, said he could not discuss details of the case because the children were in foster care. But he said that in general, “My bias is that all children — especially children of tender age — should be in home settings or treatment-based settings.” He acknowledged, however, that there is limited space available in such settings and that county officials hope to address that.

Typically, when children are brought to the juvenile hall by police, the probation department decides whether they should be detained or released to parents or community-service agencies.

This case was different. Probation Chief Mitchell said when she was called by juvenile hall supervisors shortly after 10 p.m. the night San Jose police brought the children to the hall, she determined they did not meet the criteria for detention: They did not pose a flight risk and did not pose a danger to themselves or others.

Mitchell said she believed the case would be better handled by social workers, but she did not have the power to send the children elsewhere; in cases of children as young as 10, a judge must determine whether to hold them in custody.

Yet that decision, authorized by Tondreau, also appeared to have been made under some duress. Two separate sources described the presiding judge as deeply disturbed over the incarceration, stating later that he wished he had taken the children to his home rather than allow them to suffer such a fate. Tondreau could not be reached to confirm that or to elaborate on his e-mailed comments.

County officials said no physical harm came to the children while in custody.

“Recognizing the age of the kids, we took severe caution to make sure we didn’t house them in any danger,” Mitchell said, including one-on-one supervision with a counselor. “We recognize when you have children this young, the whole experience of being incarcerated is one that can be damaging to them, especially when they’re also victims.”

The fact that the jailed children were in foster care because they themselves had been abused raised further alarm among youth advocates.

Sources familiar with the family’s circumstances said child welfare officials and police had visited their San Jose home repeatedly before the three older children — including one girl — were removed under suspicion of criminal molest.

Supervisor Dave Cortese, chair of the board’s Children, Seniors and Families Committee, described the decision to jail the children as “unacceptable,” adding he was disturbed to learn of the case from a reporter, not county staff.

“There’s a systemic failure here going on for sure,” Cortese said. “I can assure you I will be asking for a full report and perhaps an investigation.”

Contact Karen de Sá at or (408) 920-5781.