New Hampshire is violating the constitutional and statutory rights of older youth in foster care and putting children at severe risk of dangerous and tragic outcomes, according to a federal lawsuit filed by the ACLU of New Hampshire, Disability Rights Center – NH, New Hampshire Legal Assistance, Children’s Rights, and the law firm Weil, Gotshal & Manges LLP.
The complaint alleges New Hampshire is unnecessarily institutionalizing older youth in its foster care system who could receive mental health treatment and supports in their communities and live successfully with family members or with foster families.
The class action is brought on behalf of children ages 14 to 17 who are in the custody of New Hampshire’s Division for Children, Youth and Families (DCYF), have a mental health impairment, and are in, or are at risk of being placed in, an institutional or other group facility setting (also called “congregate care”).
Defendants named include Christopher Sununu, Governor of New Hampshire, Lori Shibinette, Commissioner of the New Hampshire Department of Health and Human Services, Joseph Ribsam, Director of DCYF, Henry Lipman, Director of the New Hampshire Division of Medicaid Services, and Christopher Keating, Director of the Administrative Office of the Courts.
All older youth in New Hampshire foster care have experienced the trauma of removal from their home. As older youth are moved through New Hampshire’s foster care system, they experience severe emotional, psychological, and physical harms and are exposed to risks of harm. Many older youth are unnecessarily warehoused in institutional and group care facilities. They experience frequent moves from place to place and face grave outcomes upon exiting or aging out of the system at age, including homelessness, unemployment, and lack of educational attainment.
The class action seeks to require the state to make structural changes and measurable outcomes, all directed to dramatically improve outcomes for youth:
- Adequate and effective appointed legal counsel in all dependency proceedings;
- Adequate and timely written case plans that provide a roadmap for housing, mental health services, opportunities for a permanent home, and transitional services to help older youth live independently as young adults, as well as implementation of those plans;
- Appropriate, community-based services and family placements to meet the needs of youth in the least restrictive, most integrated environment possible.
In addition to failing to place older foster youth in community-based family settings that will help them thrive, the complaint asserts that 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.
At the time the complaint was filed, there were four named plaintiffs, including R.K.: R.K. is fourteen years old. They entered foster care in 2018 due to allegations of neglect. R.K. has been diagnosed with ADHD, and also has experienced significant trauma after being separated from their family.
In their first group facility, R.K. was not permitted to visit friends at their homes, or even talk to them on the phone. They were not allowed to participate in team sports, including their favorite sport, football.
After R.K. acted out they were transferred to a facility an hour away from the school RK loved and where they experienced success. R.K. was isolated at the on-grounds school they attended. They saw their mother only once. They did not see their siblings at all during that time.
Despite the fact that they had no delinquency convictions, R.K was moved to a punitive institution where they experienced harsh treatment and ridicule. They were frequently physically restrained for minor verbal outbursts. In one instance they sustained a head injury that required stitches following physical restraint by staff members.
Nearly eighteen months into R.K.’s placement, they were charged with, and convicted of, their first delinquency charges.
R.K. has always wanted to live with their grandmother or an aunt, who has expressed a willingness and desire to care for them. To date, R.K. does not understand why they never had the opportunity to live with a family member.