Colorado officials are facing a lawsuit alleging the state kept minors in juvenile detention for days or months after judges ordered them released, largely because appropriate foster or community placements were not available.

Two minors facing juvenile delinquency charges sued Gov. Jared Polis and the director of the state’s Department of Human Services, alleging the state is incarcerating children despite judges’ orders to release them to the community.

The state refused to comment on the litigation, though a spokesperson said the safety of children under its care is a top priority.

The lawsuit, filed by a coalition of civil and disability rights advocates on behalf of defendants known only as Isaac N. and Tony S., alleged the state has knowingly kept children incarcerated in “highly restrictive” facilities for weeks or months after a juvenile court judge has determined they can be released. The lawsuit also claimed the majority have disabilities.

A report by the Colorado Department of Human Services found that last year, the state held 693 juveniles in detention facilities for one or more days after a judge deemed them releasable. According to the lawsuit, many of those juveniles were in the custody of the state’s foster care system and they remained incarcerated solely because the state hasn’t found a foster parent or home for them.

Isaac N., 17, is being held in a state detention facility. The lawsuit said Isaac has been charged with juvenile delinquency but has yet to be adjudicated. He has PTSD and ADHD, the lawsuit said.

The lawsuit claimed a judge found Isaac to be releasable nearly two months ago.

The second plaintiff, 12-year-old Tony, has also been charged but not adjudicated with juvenile delinquency. According to the lawsuit, Tony has remained incarcerated despite a judge deeming him releasable six months ago. Tony is under the legal custody of the Colorado Department of Human Services, which, the lawsuit alleged, has failed to secure him placement.

Like Isaac, Tony has disabilities, including autism spectrum disorder, cognitive impairments, and developmental delays, according to the lawsuit.

“Youth with disabilities are among the most vulnerable in detention facilities and face some of the greatest harm when systems fail,” said Emily Harvey, of Disability Law Colorado, one of the organizations bringing the case on behalf of Isaac and Tony. “This lawsuit underscores Colorado’s failure to provide the community-based services these children need.”

When asked for comment, the Colorado Department of Human Services told Colorado Politics: “As this is a matter of open litigation, we are unable to discuss the specifics at this time.”

The department added that the safety and security of the youth in the care of the Division of Youth Services is always a “top priority.”

The spokesperson for the Department of Human Services said the Division of Youth Services supports youth who have been accused of or are responsible for a crime. The division works to provide a safe, structured environment for youth accused of dangerous crimes awaiting court hearings, the spokesperson said, adding that about 44% of juveniles admitted in the last fiscal year are accused of violent crimes, including assault, battery, and murder. 

The Department of Human Services stressed that youth are detained only after being arrested for a purported crime and when a required screening indicates they pose a safety risk to the community, or when the court has determined they may not appear at their court date.

“By law, youth accused of committing a crime remain in detention under court order and are released only when the necessary court-mandated placements or services, such as treatment, GPS monitoring, or residential placement, are available to manage those risks,” the DHS spokesperson said. “The youth stays under (the Division of Youth Services) care until at least all court-ordered requirements are fulfilled and the court authorizes their release.”

The state official insisted Colorado has taken great steps to build capacity and expand placement and treatment options to support dangerous youth after detention. 

House Bill 24-1038, enacted in 2024, addresses children and youth with high-acuity, complex behavioral health needs by establishing a new system of care, expanding residential services, and increasing access to treatment foster care. The bill allocated over $12 million to strengthen services, support county departments of human services’ needs, and reduce reliance on emergency rooms and other stop-gap settings for the placement of youth.

House Bill 23-1307, enacted in 2023, creates opportunities to remove barriers for youth in need of a stepdown placement from detention to access out-of-home providers. These funds are used to reimburse counties for expenditures on enhanced services necessary to admit youth and to directly contract with two providers to serve this population.

Polis’ office said it cannot comment on pending litigation.