A federal class-action lawsuit alleging the state of New Hampshire is violating statutory and constitutional rights of older youth in foster care – putting children at severe risk for tragic outcomes – was filed on Tuesday.
The lawsuit is on behalf of children age 14 to 17 who are in the custody of New Hampshire’s Division for Children, Youth, and Families, have a mental health impairment, and are in, or are at risk of being placed in, an institutional or other group facility setting.
The ACLU of New Hampshire, Disability Rights Center of New Hampshire, New Hampshire Legal Assistance, and the national advocacy group Children’s Rights in New York City are bringing forth the suit with Weil, Gotshal & Manges LLP, an international law firm headquartered in New York City.
Gov. Chris Sununu, who is a named defendant in his capacity as governor, quickly dismissed the lawsuit on Tuesday through an emailed statement to the media and during his regular COVID-19 press conference.
“This lawsuit is led by Children’s Rights Incorporated – a special interest group, backed by Wall Street law firms, which preys on child protection programs across the country,” Sununu said in his emailed statement.
“This New York-based entity doesn’t care about our kids. They are looking for attention for themselves, and their legal maneuverings will bring our progressive reforms to a grinding halt. Shame on every single person associated with this effort,” Sununu said.
The experiences of four teenagers in DCYF custody are documented in a 61-page complaint filed at United States District Court for New Hampshire in Concord.
“G.K., C.I., T.L. and R.K. have suffered by being placed in restrictive congregate settings, segregated from their home communities and their non-disabled peers,” the complaint states.
The youth have allegedly been denied a normal teenage life with regular privileges associated with being that age and crave a nurturing family environment.
C.I. was physically restrained on a regular basis by congregate facility staff and was ultimately sent out-of-state, according to the complaint.
R.K. was threatened with having clothing taken away because of their resistance to taking their medication and suffered a head injury from a congregate facility staff member while being physically restrained, according to the complaint.
“Throughout this time, R.K. has been separated from their grandmother, who wishes to care for them,” the complaint states on page 46.
Older foster children are routinely segregated into congregate care based on bed availability, rather than specialized needs, as noted in the 2018 Annual Report of the State of New Hampshire Office of the Child Advocate, according to the complaint.
“This practice contributes to the grave outcomes experienced by youth who age out of New Hampshire’s foster care system, who are more likely to lack adult supports and experience homelessness,” the complaint states.
The complaint also asserts the state unconstitutionally denies older youth legal representation when placing them in restrictive group care settings and violates federal law by failing to adequately and timely provide and implement critical case plans.
“Too many older youth in New Hampshire are subject to unnecessary warehousing by a state system that prioritizes institutionalization over family and community,” Shereen White, senior staff attorney at Children’s Rights, said in a statement sent out as part of a news release on Tuesday.
In 2018, DCYF spent $22,409,086 on residential services for abused and neglected children in its care, compared to $8,667,868 spent on community-based services that same year, according to the complaint.
Sununu said while some states have issues they need to address, New Hampshire has made more progressive reforms to the state’s child welfare system during his administration than any other administration in state history.
Sununu said his “biggest disappointment lies with the ACLU-NH, NHLA, and the DRC-NH, who know of all the great reforms we have made.”
Then Sununu doubled down during his regular COVID-19 press conference when asked about the topic by a news reporter, claiming Children’s Rights is “looking for settlements, looking for long-term payouts, if you will.”
“You can see the data just over the past two or three years, getting better and better in all of these different metrics. So, we’re on a great path here and we just, I get very frustrated when these outside groups are just looking for some extra cash, looking for some money,” Sununu said.
Karen Rosenberg, senior staff attorney at Disability Rights Center of New Hampshire, told InsideSources the lawsuit was filed to push for reform on longstanding issues, not as any sort of attack on the progress that is currently being made.
Rosenberg said they teamed up with Children’s Rights because the organization has access to a wealth of information and knowledgeable experts who can draw on their experiences to help teens in state custody.
Rosenberg said by unnecessarily institutionalizing older youth who could receive mental health treatments and supports in their own communities, New Hampshire officials are depriving them of what they need as they grow into adults.
“This is a huge, traumatic event when youth are removed from their family,” Rosenberg said. “They’re evolving humans and they need a lot of support.”
It is estimated that 70.3 percent of foster youth in New Hampshire ages 14 to 17 were housed in congregate care facilities in 2019, while the national average for this age group was 31 percent.
For teens with a mental health diagnosis, 90.5 percent were placed in congregate care settings, compared to the national average of 39.8 percent.
A 2019 report from Children’s Rights (2019-Childrens-Rights-Annual-Report-web-1.pdf) highlights the organization’s victories.
They include winning a precedent-setting case in Missouri that will stop the practice of giving children powerful psychotropic drugs without proper oversight and monitoring; a legal victory in South Carolina which ends the practice of moving children night to night between hotels, offices, shelters, or overcrowded foster homes; and a Tennessee case which was closed in 2019 after turning “one of the worst foster care systems into a model for the nation.”
The report also includes the sources of funds for Children’s Rights and a list of donors.
Special events made up 37 percent of funding in 2019. Attorney’s fees contributed to 32 percent. Grants and contributions amounted to 30 percent.
NH Department of Health and Human Services has more information for the public about foster care and adoption services for children and teens on their website at www.dhhs.nh.gov/dcyf/adoption.
