A DISCUSSION OF LAW AND JOURNALISM

Hands Off “Short Term 12”

By Noah Forrest

Short Term 12” is one of the best films of the year.

In theaters now, writer/director Destin Daniel Cretton’s second feature is a gripping, emotional, and knowing glimpse into the complex relationship between foster kids in a group home and the (not much older) adults who provide much of their care.  It is rare these days for a movie to give us a dramatic (but not melodramatic) and affecting (but not affected) narrative about young people grappling with real issues that have little do with whether or not they will save the world from robot aliens.

Grace (Brie Larson in a tour de force performance that should win all the awards) is the head caretaker at a group home for foster children who are in her charge for a host of reasons.  There are three other caregivers, including her boyfriend Mason (John Gallagher, Jr. of Aaron Sorkin’s “The Newsroom,” also excellent), and together, they deal with the day-to-day issues that arise when you place a dozen young, troubled people of varying ages in a dormitory-like setting.  The early to mid-20s caregivers are not nurses or doctors or teachers, but they are expected to be parents, friends, janitors, guardians, dispensers of medicine and advice — and to mete out punishment when it is called for.

In some scenes, Grace and Mason (and other staff) are quite physical with their minor-age wards, restraining their wards who have violent outbursts that include spitting, hitting, and slamming doors.

Yet at one point in the film, while explaining the ropes to a new caretaker, Mason states matter-of-factly that if a child sets even one foot off the property the group home rests on, then all they can do is try to reason and cajole the kids back into their care.  The staff cannot physically bring them back; they, according to the film, are not allowed to lay hands on them once they are off the property.

This gave me pause.

It’s undisputed that most critics fell in love with the film, but how many movie critics are also lawyers, fixated about perplexing legal questions raised?

That’s me.  Law student by day; movie critic the rest of the time.

And here’s my question: If caretakers can restrain the minors while they’re on the property, why the big change once they get one step away?

Although the film doesn’t offer any clues about where the home for wayward teens is located, the director has confirmed in interviews that it was shot in California.  So let’s start with California law.

While some group foster homes in California are state-run, most are privately overseen by certified administrators, licensed by the state and run by a board of directors.  Each home is run differently; some have doctors who come by every day and others have teachers, but all have to comply with a series of standards set forth in their licensing agreements.

The licensing requirements, as laid out by the California Department of Social Services, are quite specific, with rules about how to service children with handicaps and various health codes. Shockingly, though, there is nothing in these licensing agreements regarding issues of liability by the facility or the staff if something were to happen to a child in their care who might run away.

The most insight the California Department of Social Services website offers is what to do when such an incident occurs. Staff must report when the child’s absence was first noticed and document any actions that were taken to discourage the child from leaving. There is no admonishment against physically restraining a runaway child when outside of the actual property.

In “Short Term 12,” Grace sees a young girl named Jayden (Kaitlyn Dever) walk off the property; Grace runs after her but only catches up when Jayden is outside the gate –too late to restrain her.

The Manual of Policies and Procedures  of the group home licensing agreement states that one of the requirements of the incident report is to divulge whether law enforcement was involved.  Note that it doesn’t say that the police should or need to be involved, making it seem as if it’s a matter of choice by the staff to figure out the best course of action.  In the film, after Jayden ran away, Grace followed her home and stayed with her until she agreed to return; another course of action would be to call the police and ask for their assistance in either finding a runaway or helping to bring her back to the facility.

As for what would happen if poor Jayden was hurt in some way after running away, it’s possible that a suit could be brought against the facility and that a court could find the group home liable for negligence, especially if it, like many homes, were understaffed.

And then there’s the problem of a runaway who causes harm. Could the group home be held liable?

Under common law, a parent can only be held liable for the actions of her child if she knows of the child’s violent tendencies and fails to take “reasonable measures” to restrain him.  Whether a foster parent or a group home can be held liable will turn on whether they are acting in loco parentis.

Arguably, the staffers in the film were acting in loco parentis because a lot of their duties are parental in nature. On the other hand, these staffers go home at night to their own lives and they have days off; as my mom will gladly tell you, real parents don’t get days off.

Similarly, parents would have the ability to restrain their child no matter how far off their property the child stepped.  Parents have the right to take any reasonable measures, short of locking their kids up, that they feel are necessary to keep them from running away.

In certain cases that involve a non-secure detention facility, children can face repercussions if they don’t comply with the rules. In a 2011 New York case, for example, a child who had ran away from a facility was charged with “escape in the second degree.”  Reasoning that the point of a non-secure facility was not to punish, but rehabilitate and provide therapy, the child was transferred to a more secure facility. The judge cited the New York Family Court Act §301.2, which states that, “‘Detention’ means the temporary care and maintenance of children away from their own homes.” This seems to jibe with much of what occurs in “Short Term 12.”

So why can’t the caretakers in the film touch the kids once the children are off the property?  It’s likely that the institutions and the Department of Social Services feel that any benefit of the staffers and the agency of touching a child was touched off the property is outweighed by the potential liability.

Now — go see this fantastic movie.  Leave niggling cinematic legal issues to me.

I’ll be back.

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One Response

  1. MW says:

    Law student by day, movie reviewer by night?
    Love that!

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