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Federal Judge Clears Way for NC Foster Children’s Discrimination Case to Proceed

Raleigh, NC – A federal judge has issued an important win for children in the foster system with disabilities warehoused for months and years in dangerous, locked psychiatric institutions, rejecting every argument the NC Carolina Department of Health and Human Services (DHHS) made to attempt to dismiss the class action case and deny the children their day in court.

The ruling by US District Court Judge William L. Osteen Jr. means the case, which alleges DHHS unnecessarily confines foster children with disabilities in psychiatric residential treatment facilities (PRTFs) instead of providing them housing and services in the community, can move forward.

As described in the complaint filed in December 2022 in the federal district court for the Middle District of North Carolina, these children sent to PRTFs routinely face trauma instead of treatment in the facilities, including broken bones, sprains, bruises, sexual assault, emotional abuse, and dangerous physical and chemical restraints administered by staff. The Judge acknowledged in his decision that the services the children describe receiving at PRTFs are: “at best, inadequate, and, at worst, highly abusive.” These conditions especially hurt children of color because they enter the foster system at higher rates and are sent to these facilities at higher rates.

According to a recent 3-part WUNC investigative series, “Out of Sight,” DHHS reported to WUNC that of 1,158 children sent to PRTFs in 2023, more than half, or 651, were in foster care. The series further revealed that kids in foster care are 10 times more likely to enter a PRTF, and that the conditions are so bad that a leading NC state senator who visited two since-closed PRTFs last year “would not have boarded [his] dog” there. DHHS is aware of these harms, yet continues to pay millions to the private companies that profit from PRTFs instead of supporting community-based placements and services that have been shown to be more effective and less costly.

In seeking to have the case dismissed, DHHS claimed the children were placed in the PRTFs by treatment professionals with the blessing of state courts. The federal judge rejected DHHS’s claims, finding that if there are inadequate amounts of community-based services available as an alternative to the PRTFs as the children allege, there were simply no alternatives available for the children. The Court also rejected DHHS’s argument that the children’s opposition to their placement in the PRTFs did not matter because their DSS guardians had signed off on the placements, an important victory for these children whose voices and opinions are often overlooked and ignored.

The lawsuit is brought by five named plaintiff children and on behalf of a class of North Carolina youth in foster care with mental and behavioral health needs, together with Disability Rights North Carolina (DRNC) and the North Carolina Branch of the NAACP (NAACP-NC) as organizational plaintiffs. The Plaintiffs are represented by lawyers at DRNC, NAACP-NC, the national advocacy organization Children’s Rights, and pro bono counsel from the law firm of Moore & Van Allen, PLLC.

“The evidence that PRTFs harm children is overwhelming, yet we continue to spend millions of taxpayer dollars sending children we have vowed to protect to these facilities. We hope the court’s ruling sends a strong signal that DHHS cannot continue ‘business as usual’ and must make significant, lasting changes to its children’s mental and behavioral health system,” said Virginia Knowlton Marcus, chief executive officer of DRNC.

“Today is a day of good news for children in North Carolina. The court has recognized the validity of our case, and the urgent need to address the intolerable harms children face in PRTFs. An institution is no place for any child, but children with disabilities – and disproportionately Black and Brown children — confined to PRTFs face worse outcomes and experience higher rates of maltreatment while in child welfare custody,” said Deborah Dicks Maxwell, president of the North Carolina Branch of the NAACP. “It’s time to come to the table and put the health and safety of our children first.”

“We are gratified that the judge has upheld all our claims and hopeful that DHHS will work with us to address the profound harm being done to children in North Carolina,” said Marissa C. Nardi, lead counsel at Children’s Rights. “This decision makes it clear DHHS must stop unnecessarily institutionalizing children and instead provide the community supports they need. It also elevates the voices of our young clients who so badly wish – and deserve – to live normal childhoods outside of the PRTF walls.”

“This decision is a significant milestone and a big win for the kids we represent, and we hope the Court’s decision brings DHHS to the table so that we can all help the children who deserve far better from the system responsible for their care,” said Josh Lanning, lead counsel at Moore & Van Allen, PLLC.

Contact

Holly Stiles, Disability Rights North Carolina: holly.stiles@disabilityrightsnc.org

North Carolina Branch of the NAACP: ijoyner@NCCU.edu

Josh Lanning, Moore & Van Allen, PLLC: joshlanning@mvalaw.com

Camilla Jenkins, Children’s Rights: cjenkins@childrensrights.org

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About Disability Rights North Carolina

Disability Rights North Carolina is the federally mandated protection and advocacy system in North Carolina, dedicated to advancing the rights of all people with disabilities, of all ages, statewide. DRNC is an independent, 501(c)(3) nonprofit organization and a member of the National Disability Rights Network. Learn more about Disability Rights North Carolina at disabilityrightsnc.org.

About NAACP

We are the home of grassroots activism for civil rights and social justice. We have more than 2,200 units across the nation, powered by well over 2 million activists. In our cities, schools, companies, and courtrooms, we are the legacy of W.E.B. Dubois, Ida B. Wells, Thurgood Marshall, and many other giants of civil rights. 

Our mission is to achieve equity, political rights, and social inclusion by advancing policies and practices that expand human and civil rights, eliminate discrimination, and accelerate the well-being, education, and economic security of Black people and all persons of color. naacp.org 

About Children’s Rights

Every day, children are harmed in America’s child welfare, juvenile justice, education, and healthcare systems. Through relentless strategic advocacy and legal action, we hold governments accountable for keeping kids safe and healthy. Children’s Rights, a national non-profit organization, has made a lasting impact for hundreds of thousands of vulnerable children. For more information, please visit childrensrights.org.

About Moore & Van Allen, PLLC

Moore & Van Allen PLLC, founded in 1945, has nearly 400 attorneys and professionals serving clients in over 75 areas of focus. The attorneys at Moore & Van Allen provide sophisticated legal services within nationally recognized Litigation, Corporate, Financial Services, Intellectual Property, Bankruptcy, and Commercial Real Estate law practices for international banks and financial services companies, domestic and global manufacturers, retailers, individuals, and healthcare and technology organizations. The firm is ranked in the prestigious “Am Law Global 200” list, and U.S. News & World Report and Best Lawyers have recognized Moore & Van Allen in their 2023 “Best Law Firms” rankings, both regionally and nationally. The attorneys, professionals, and employees at Moore & Van Allen are committed to community efforts typically donating more than 10,000 hours of pro bono legal services and volunteer service each year.