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BY EMAILTo:Area Director of the Greater Lowell Area OfficeCC:Attorney for DCFDCF Social WorkerDear Area Director:I am writing to implore you to place XXXXX XXXXX, a 15-year-old child who is in your Agency’s care and protection custody, in a DCF placement rather than continue to house him at DYS given the recent novel corona virus (“COVID-19”) emergency.Since the first discovered case in late December 2019, COVID-19, the novel dangerous and highly contagious coronavirus, has spread across the world and the Commonwealth exponentially. The United States now has the highest number of reported cases in the world, with 213,144 confirmed cases and 4,513 deaths across the country. Cases in the Commonwealth go up by over a thousand new confirmed cases each day. No one is immune, including teenagers. Leading public health officials have warned that the “epicenter of the pandemic will be jails and prisons.” This is because, as the Centers for Disease Control and Prevention (“CDC”) has explained, correctional facilities “present[] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, [detention center] staff, and visitors.” The social distancing required to control the spread of the disease– the only known and effective step individuals alone can take – is impossible in juvenile detention due to staffing and given their limited liberty, they cannot properly sanitize the surfaces they touch. The risk is not hypothetical. As of March 30, 2020, more than 160 inmates and 130 staff members at Riker’s Island had tested positive for COVID-19, more than 800 inmates were being held in isolation, and the facility’s 88-bed contagious disease unit was filled to capacity. The same pattern has already begun in Massachusetts at detention facilities in Middlesex County, including at the Massachusetts Department of Corrections in Bridgewater (17 inmates, 4 staff), MCI Shirley (2 staff), Middlesex County Jail and House of Correction (2 inmates, 8 staff),, Norfolk County Correctional Facility (1 staff), and Plymouth County Correctional Facility (1 staff). On April 2, 2020, DYS reported that there are 7 confirmed COVID cases in 2 facilities already. The DYS facility where XXXXX is housed appears to not be affected, yet. DPH has not reported any cases in DCF facilities.The Department of Youth Services in Massachusetts is responding to these “emergent issues related to the COVID-19 pandemic.” Indeed, that Agency released new guidance earlier this week:given the current best practices for containment of COVID-19 issued by the Massachusetts Department of Public Health and the Centers for Disease Control…In light of the public health issues attendant to the COVID-19 pandemic, DYS is conducting a review of all youth who are currently in their transitional period and has identified youth who are good candidates for accelerated community release…DYS believes the release of this cohort of youth makes sense in the urgent circumstances, allows them to return home, and will lower the census in our residential continuum.See?Department of Youth Services Interim Residential Release Planning Advisory (effective March 27, 2020). Given that DYS, the other child custodian agency in Massachusetts is releasing adjudicated and committed delinquent and youthful offender children in its custody into the community with agency supervision to better protect its wards' health in these "urgent circumstances," it is unacceptable the DCF is not pursuing the same public health measures for the children in its custody who are being held pre-trial simply waiting for a DCF placement. Importantly, this is the third time since XXXXX came into C&P custody where he has waited in pre-trial detention for DCF to find a placement. Currently, XXXXX spent over 200 days of the 400 days he has been in DCF C&P custody in pre-trial detention. This is true despite the fact that a federal court has already decided that?DCF must ensure that a child in its custody is adequately cared for and protected, and that the agency has an obligation to meet all of that child’s needs. Connor B. v. Patrick, 985 F. Supp. 2nd 129, 158-159 (D. Mass 2013).??Further, the 2011 Memorandum of Understanding between the Department of Youth Services and the Department of Children and Families on?Pre-trial Detention prohibits "a youth being placed in detention at DYS while DCF is developing a treatment plan or while a youth is waiting for another DCF placement to become available." As you are aware, XXXXX's bail mittimus provides that he can released to DCF for placement. He is quite literally one of the youth the MOU was meant to protect from extended DYS pretrial detention due to DCF's failure to place him. Importantly, this MOU is consistent with the agency’s mandates under 110 CMR 7.101 (“All out-of-home placement decisions shall be made in the best interests of the child, based upon safety, well-being and permanency of the child and the child's individual needs…The Department shall consider, consistent with the best interests of the child, the following placement resources in the following order: (a) placement with a kinship family; (b) placement with a child-specific family; (c) placement in a family foster care home where the child was previously place; (d) placement in family foster care; (e) placement in a shelter/short term program or group home; (f) placement in community residential care. Every reasonable effort should be made to place a child in accordance with 110 CMR 7.101(1) and (2).”).?DCF Permanency Planning Policy (2013), pg 12-13 further supports this view that “[p]lacement decisions are based on the child's best interests, including those related to safety, well-being, permanence, and continuity of significant relationships, and reflects efforts made to identify the least restrictive setting available to meet the child's individual needs.” Nowhere in any regulation or policy does it rank pre-trial detention as an alternative placement. Further, in no policy, regulation, or MOU does the Agency endorse DCF’s approach in this case of sitting and waiting, failing to identify any placement in a timely manner, and abdicating its duty by leaving the Child in pretrial detention indefinitely.The DCF Commissioner has not suspended any policy or regulation during this time, meaning that the Agency still must make reasonable efforts pursuant to statute and regulation.?G.L. c. 119, § 29C;?See 110 C.M.R. 1.00 (“[T]he Department will make every reasonable effort to encourage and assist families to use all available resources…”)(emphasis added).? Although the [Residential Placement] has placed intakes on hold, there are many area programs which have not and placements remain available. I ask that XXXXX be discharged to a community DCF placement or kinship placement immediately.?????? Even before the pandemic, leaving XXXXX at DYS for extended periods of time placed him at risk, nevertheless now. Indeed,?the harm done to the juvenile as a result of an extended period of pre-trial detention versus being placed in the community is long lasting. In a recent study done by UCLA, researchers reported that more the 21% of people who had been incarcerated as children reported poor general health in adulthood (compared with 8% for those never incarcerated). Equally concerning, the researchers found that more than 1 in 4 of those incarcerated before age 14 reported suicidal thoughts as adults, contrasted with 1 in 15 of the group that was never incarcerated, or even 1 in 10 of the group incarcerated at later ages. Id. Finally, the study found a stark and concerning racial inequity pattern in those incarcerated as young children. Indeed, people incarcerated at the youngest ages were significantly more likely to be male, black, or Hispanic than those incarcerated at older ages and those never incarcerated. Id. They were also much more likely to have been raised in the lowest income group and in a single-parent household. Id. Given that the Juvenile in this case fits all of these risk factors, it's particularly concerning that the Department has not made reasonable efforts in this case to move him to community placement.The novel coronavirus pandemic only further escalates this risk for XXXXX. As I assume you know as his custodian, XXXXX has asthma. His most recent DYS records show that he is prescribed ProAir (metered dose inhaler for asthma) and?Prazonsin?(an antihypertensive). Several medical experts, professional associations, and medical journals have warned that children with these underlying illnesses like asthma are at greater risk of infection and possibly death if they were to contract the virus. As a group of doctors wrote in COVID-19 in pediatric patients: What the hospitalist needs to know on March 17, 2020,[I]mmunocompromised children and those with chronic health conditions are thought to be at a higher risk for contracting the infection, with the probability for increased morbidity and mortality. Some of these risk groups include premature infants, young infants, immunocompromised children, and children with chronic health conditions like asthma, diabetes, and others. It is essential that caregivers, healthy siblings, and other family members are protected from contracting the infection in order to protect these vulnerable childrenVenkata Konanki, MD, FAAP Raghavendra Tirupathi, MD, FACP And Raman Palabindala, MD, SFHMS, COVID-19 in pediatric patients: What the hospitalist needs to know, The Hospitalist (March 17, 2020)(emphasis added).As we are increasingly learning, children comprise a small but tragic percentage of COVID-19 deaths. In fact, on March 20, 2020, the WHO Director General Tedros Adhanom Ghebreyesus warned that worldwide, young people make up a “significant proportion” of patients requiring hospitalization, sometimes for weeks and sometimes resulting in their deaths. The largest study of pediatric COVID-19 patients to date shows that approximately 6% of infected children and 11% of infected infants have had severe or critical cases, and U.S. data shows a growing number of pediatric cases requiring intensive care. Given XXXXX’s pre-existing medical conditions, he is particularly vulnerable to exposure and severe illness. Immediate action on the part of his custodian, DCF, is needed to protect XXXXX. Moreover, sending him to an environment where he is in contact with fewer people like a kinship placement or even a group home means his exposure will be less and his ultimate placement at the [RESIDENTIAL PROGRAM] could happen without delay when they resume intakes. Accordingly, I am asking that you place XXXXX in a DCF placement, as his DYS bail mittimus permits, immediately. If you do not plan to do so, I ask that you inform me in writing electronically at [EMAIL] or via fax at XXX-XXX-XXXX regarding the reason for your refusal so that further relief can be sought.Respectfully,ATTORNEY ................
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